TMI Blog1978 (8) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... having been established in or about the year 1956. It went into production of sugar for the first time from the year 1960. The Central Government, acting under the provisions of the rules framed under Section 37 of the Central Excises and Salt Act, 1944, passed an order dated 12-10-1974, which is Order No. 146/74-C.E., (G.S.R. 421-E) providing exemption from duty in respect of sugar. The said order contemplates exemption in respect of two categories of factories, viz., one in respect of factory which commenced production for the first time in 1967-68, or earlier and the other in respect of factories which commenced production for the first time after 1967-68. The Notification also lays down different exemptions in respect of two different p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding five years the factory has not produced any sugar and had produced sugar only during the corresponding periods (October-November) of the remaining two years, the average production should be arrived at by dividing the total production of 42360 quintals by 2. According to the respondents, the average production would thus work out to 21180 quintals. On this basis, the Assistant Collector held that the factory would be eligible for a rebate of Rs. 1,12,660 on the excess production of 2620 quintals. Accordingly the Assistant Collector, Pondicherry, instructed the petitioner to revise its claim for rebate. 5. According to the petitioner, it has become entitled to the amount claimed by it as per the terms of the Notification dated 12-10-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months of October and November, and the figure must be arrived at by dividing the total production during these five years by five. Mr. Thiruvenkatachari also pointed out that the `sugar year' contemplated under Explanation 1 (d) means the period of 12 months ending with the 1st day of October and ending with the 30th of September next following and that as such the simple average production during the corresponding period of the preceding five years mentioned in clause (1) (a) must be interpreted to mean that 'Nil' production in certain of the years during October and November must also be taken into account for arriving at the average. Mr. Thiruvenkatachari also drew my attention to Corrigendum No. 150/75-Central Excise, dated 14-6-1975, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Notification the Assistant Collector, Pondicherry, instructed the factory to revise the claim." In spite of the abovesaid averments in the counter affidavit, Mr. Chengalvarayan, learned counsel for the respondents, reiterated his argument that clause (4) carved out by Corrigendum will not govern clause (1). If that be so, I have to consider only the interpretation to clause l(a) of the Notification. Mr. Chengalvarayan, learned counsel for the respondents, also submitted that it is not the average period of production that has to be taken into account in computing the average, but it is the average production for the period. Since there was no production for three years preceding 1974-75, during the months of October and November, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `sugar year' is defined in Explanation l(d) as - " `sugar year' means the period of twelve months beginning with the 1st October and ending with the 30th of September, next following". Thus, it is clear that the average to be worked out is on the basis of the number of years preceding 1974-75 during which time the factory was in production. Admittedly, the present petitioner mill went into production as early as 1960. No doubt, the petitioner had not produced sugar in the months of October-November, 1969, October-November, 1970 and October-November, 1971. Since, as per clause (1) of the Notification it is mentioned "the average production of the corresponding period the preceding five sugar years", I am of the view that the average shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferring to the above said provisions, Mr. Chengalvarayan, submitted that the proper remedy for the petitioner will be by way of an appeal and revision to the respective authority as provided under Sec. 35. 12. Mr. Thiruvenkatachari, learned counsel for the petitioner, submitted that the appeal or revision is in respect of a case where a person is aggrieved by any decision or order passed by a Central Excise Officer under the Act or the rules made thereunder. According to the learned counsel, there is neither a decision nor an order in this case for the petitioner to invoke the provisions of Sec. 35 of the Act. 13. The Assistant Collector, who is the first respondent herein, only wrote to the petitioner on 24-10-1975 rejecting the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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