TMI Blog1984 (6) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... inafter referred to as the Company), on 883.82 quintals of white sugar exported without payment of duty, in terms of Section 11A of the Act. He also rejected a claim from the Company for ₹ 3,08,321.35 in so far as it related to the duty incidence on excess sugar produced and exported under bond without payment of duty. In confirming the demand, the Assistant Collector took into account the extended time limit referred to in Section 11A of the Act. When the matter was taken up in appeal with the Collector of Central Excise (Appeals) he found that the demand for duty was for the period 1-5-1978 to 15-8-1978 for which a show cause notice was issued on SALEM CO-OPERATIVE SUGAR MILLS LTD. Versus COLLECTOR OF CENTRAL EXCISE, MADRAS 17-2-1981 ; hence recovery was barred by limitation. However, he upheld the rejection of the claim of the Company in respect of the sugar exported in bond vide his order C. No. V/1/31/82, dated 21-2-1983. 4. In the appeal before us, the Company has urged that rebate in respect of sugar exported during May 1978 and 15-8-1978 is due to them. In the Cross Appeal, the Collector of Central Excise, Madras, disputes the finding of the Collector (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 108/78. Section 37 of the Act deals with powers of the Central Government for making rules. Section 37 (xvi) reads - provide for the grant of a rebate of the duty paid on goods which are exported out of India or shipped for consumption on a voyage to any port outside India. Rules 12 and 13 have been notified in exercise of this power. Even when goods are exported under bond, it is on the execution of a bond for payment of duty; if goods are not exported, the executor of the bond discharges the legal obligation to pay the duty leviable on the goods. In effect, therefore, there is a legal payment of duty. Hence, Notification under Rule 8 which grants a rebate should be applicable to the quantity of sugar exported. In support of the plea regarding leviability v. payability, the Advocate referred to the judgment of their Lordships of the Supreme Court in the case of N.B. Sanjana, Assistant Collector of Central Excise, Bombay and others v. The Elphinstone Spinning and Weaving Mills Co. Ltd. (A.I.R. 1971 SC 2039) wherein in para 14 it is observed : The charging Section 3 (1) specifically says There shall be levied and collected in such a manner as may be prescribed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to rebate as divorced from the amount of duty payable on the goods is not a correct approach. (2) Sec. 3 of the Act refers to the levy of duty on excisable goods and collection in such manner as may be prescribed. This prescription is contained in Rules 7, 9A and 49, according to which duty becomes leviable at the time of removal of the goods from the place of manufacture and Rule 9A prescribes the rate of duty leviable as the one prevailing at the time of such removal. In calculating the quantum of relief available even to sugar attributable to excess production, the quantum of duty has to be calculated at the rate applicable at the time of removal of the sugar for home consumption or export. The quantum cannot, therefore, exceed that calculated in the prescribed manner. (3) Rules 12 and 13 are complementary. Had the sugar under consideration paid duty - even at the lower rate in terms of Notification No. 108/78 - before export, the amount of rebate available will only be the quantum of duty actually paid. Rule 12 talks of the grant of rebate of duty paid on export (emphasis applied). Rule 13 deals with a similar situation but covers one in which export is under bond. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged so far in the proceedings below. It is not open to the appellant to raise it at this stage and, that too, without any concrete data. (9) In respect of the Cross Objection, the Senior Departmental Representative submitted that the fact of export was not known to the Department and hence a larger amount came to be sanctioned earlier. As there was suppression of relevant information, the extended time under Sec. 11 A has been correctly applied. 8. The true scope of a notification under Rule 8(1) regarding excess production of sugar has been dealt with by us in our Order-in-Appeal No. ED (MAS) 6/82, dated 23-6-84. Therein we have held that the quantum of relief available to sugar produced in excess of the production during the base period cannot be in excess of the actual quantum of duty leviable on the sugar-levy or non-levy-at the time of clearance from the factory of manufacture. We follow the same decision in the present case also in interpreting the scope of Rules 12 and 13 vis-a-vis the quantum of sugar exported from out of the excess production in any period. 9. Sec. 37(xvi) enable the Government to make rules to provide for the grant of a rebate of the duty paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 13 are supplementary and deal with the same matter - only the mode for claiming the benefit varies. Thus, we find that in the case of clearance of goods for export under Rule 13 on execution of a bond but without payment of duty, there is no legal discharge of the duty burden or that such a discharge, if any, could be equated with an actual payment of duty. Rule 8(1) is applicable to a situation where goods are cleared on payment of actual duty. Hence, the claim of the Company that they are entitled to a certain sum as rebate on sugar exported out of the country is not maintainable. 11. In the light of the above reading of the law, we do not accept the contention that the Assistant Collector was bound to follow an earlier order of the Appellate Collector, if that was an incorrect one or was based on incorrect appreciation of law and facts. 12. The plea that the quantity exported should be split in a specified proportion and relief granted is not acceptable either. As correctly pointed out by the Senior Departmental Representative, there is a finding of fact that after scrutinising the relevant documents it was found that the quantity of sugar exported was from out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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