TMI Blog2010 (9) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants that for the purpose of ascertaining the rate of duty for the month of March, 1990 the consideration of the period to the extent of first 19 days to be considered separately and for the later 12 days to be considered separately - Neither the earlier notification nor the amended notification gives any indication for adopting such a procedure. This aspect has not been considered by any of the authorities below - However, it is a pure question of law which can be decided on the basis of undisputed facts on record - Not necessary to interfere in the impugned order on the said ground as find the ground to be totally devoid of substance and can be decided by the Tribunal itself on the basis of undisputed facts on record. - Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entitled for such benefit under the said notification. Pursuant to the said order, the appellants filed refund claim contending that the amount paid in excess of the duty as was payable in terms of the said notification for the month of March, 1990 be refunded to the appellants. The said claim came to be rejected by the Adjudicating Authority as well as lower appellate authority. 3. In terms of Notification No. 54/88 read with Notification No. 37/89 under Sl. No. 6 of the table appended to the said notification, the waste, paring and scrap of flexible polyurethane foam are permitted to be cleared on payment of 40% of ad valorem duty subject to that the aggregate quantity of clearances of such goods outside the factory from any factory f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90 was 3450.600 kgs. The authorities below therefore ought to have seen that for the clearances from 1-3-1990 to 19-3-1990 the ceiling limit was 10% of the clearances in February, 1990 i.e. 2566.200 kgs. and the appellants had cleared nil quantity in excess of the quantity of 2566.200 kgs. upto 19-3-1990 and nil quantity in excess of 3450.600 kgs. after 20-3-1990 and in those circumstances there was no liability to pay the duty over and above 40% ad valorem, which was already paid by the appellants and therefore whatever was paid in excess of 40% ad valorem was refundable. According to the appellants, this aspect has not at all been considered by the authorities below. 6. The crux of the argument is that on account of the Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the entire preceding year and not the month of February only. The Notification No. 30/90 nowhere saves the applicability of monthly production under the old notification for the limited period of 20th March, to 31st March. Being so, it is difficult to accept the contention of the appellants that for the purpose of ascertaining the rate of duty for the month of March, 1990 the consideration of the period to the extent of first 19 days to be considered separately and for the later 12 days to be considered separately. Neither the earlier notification nor the amended notification gives any indication for adopting such a procedure. To accept the contention canvassed on behalf of the appellants would virtually amount to re-writing a new not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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