1985 (12) TMI 269 - AT - Central Excise

Summary

Issues:
1. Claim for rebate on excess sugar production.
2. Provisional credit and subsequent demand for recovery.
3. Application of Central Excise Rule 9-B and Rule 10.
4. Limitation period for issuing demand notice.
5. Interpretation of Notification No. 108/78 on exemption quantum.
6. Justification for recovery of excess amount sanctioned.

Analysis:

1. The case involved a dispute regarding a claim for rebate on excess sugar production by the appellant. The appellant filed a rebate claim for the excess production during a specific period, which was duly verified and sanctioned for provisional credit by the authorities.

2. Subsequently, it was discovered that the appellant had availed an excess rebate amount, leading to a demand-cum-show cause notice for the recovery of the excess amount. The Superintendent passed an order restricting the total rebate claim and directing the recovery of the excess amount under Central Excise Rule 9-B.

3. The appellant contended that Rule 9-B did not apply to the facts of the case, and the demand notice issued after more than six months from the date of availing provisional credit was barred by limitation. The appellant argued that only Rule 10 could justify the recovery, and the time limit for such action was one year.

4. The respondent argued that the original sanction of rebate was provisional and subject to finalization, justifying the demand notice. However, the respondent failed to provide arguments regarding the limitation under Rule 10 raised by the appellant.

5. The Tribunal analyzed the situation and found that since there was no provisional assessment under Rule 9-B, Rule 10 would apply. The demand notice was deemed to be hit by limitation under Rule 10, as it covered demands for duty erroneously refunded due to misconstruction or mistake.

6. Therefore, the Tribunal set aside the impugned order of the lower authorities, allowing the appeal in favor of the appellant. The recovery of the excess amount was not justified within the applicable limitation period under Rule 10.

7. The Tribunal did not delve into other contentions raised, as the finding on the limitation period was sufficient to decide the case in favor of the appellant.

8. The impugned order was overturned, granting consequential relief to the appellant based on the limitation issue under Rule 10.

9. Lastly, the Tribunal noted that the respondent's filing of a "memorandum of cross-objections" was unjustified, as the impugned order did not benefit the appellant, and the memorandum merely contained para-wise comments on the appeal memorandum.