TMI Blog1985 (12) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... r to facilitate the understanding of the controversy, we reproduce this notification below :- In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, read with sub-section (4) of Section 50 of the Finance Act, 1982 (14 of 1982), the Central Government hereby exempts sugar, described in column (1) of the Table below and falling under sub-item (1) of Item No. 1 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from so much of the duty of excise and special duty of excise leviable thereon as is specified in the corresponding entry in columns (2) and (3) of the said Table. THE TABLE Description of Sugar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Rules, 1944, or in such other record as the Collector may prescribe under Rule 53 or Rule 173-G of the said rules, shall be adopted ; (ii) any sugar obtained by refining gur or khandsari sugar shall not be taken into account ; (iii) any sugar obtained by reprocessing of sugar house products left over in process at the end of any preceding sugar year shall be taken into account ; and (iv) any sugar obtained by reprocessing of defective or damaged sugar or brown sugar, if the same has already been included in the quantity of sugar produced, shall not be taken into account. 3. Where during the period mentioned in column (1) of the said Table, production in any of the preceding three sugar years was nil, the average production sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 980-81 season was taken as the average production. In appeal, the Collector (Appeals) set aside the Assistant Collector s order and accepted the respondents plea that the production during May-September of the previous three years should be divided by 3. By doing so, the average production figure becomes smaller and it correspondingly gives a larger figure of excess production during 1981-82 for earning the duty rebate. The Collector of Central Excise, Aurangabad is now in appeal before us with the prayer that the order of the Collector (Appeals) be set aside and the order of the Assistant Collector restored. In brief, the Collector s argument is that because of clause 3 of the Notification the average should be arrived at by dividing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not produced sugar during any of the specified preceding years. In the case before us, the department is not seeking to totally disqualify the respondent factory. The dispute is only on the point whether the production of the preceding three years should be divided by 3 or by 1, in order to arrive at the average. 5. The authorities mentioned at (iii) and (iv) above are more relevant to the point in dispute before us. However, both these authorities are on the interpretation of Exemption Notification No. 146/74-C.E., dated 12-10-1974. This notification also related to grant of duty relief for higher production of sugar. The corresponding provisions, which are the subject matter of dispute, were worded differently in this notification. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry for the entire sugar year equals of exceeds the average production of the preceding five sugar year. Rs. 82/- per quintal Rs. 22/- per quintal (a) average production , in relation to sugar produced in a period by a factory which had gone into production for the first time in 1967-68 or earlier, means the simple average production during the corresponding period of the preceding five sugar years ; **** 4. Where production in one or more sugar years among five sugar years was nil, the production in such sugar year or sugar years shall be ignored and the average production shall be the average of the production of the corresponding period of the remaining sugar years. **** 6. In the case reported at 1983 E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned in the present appeal. As against the words means the simple average production during the corresponding period of the preceding five sugar years in explanation (a) of Notification No. 146/74-C.E., the words in explanation (a) of the new notification are means the average production during the preceding period of each of the preceding three sugar years . The difference in wording is of a more pronounced and material character when we come to paragraph 3 of the new notification. As against the words where production in one or more sugar years among five sugar years was nil in paragraph 4 of the old notification, the words in paragraph 3 of the new notification are where during the period mentioned in column (1) of the said Tabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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