TMI Blog1979 (8) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... d 12-10-1974, which reads as follows :- "In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts sugar, described in column (2) of the Table below and falling under sub-items (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 leviable thereon as is specified in the corresponding entry in columns (3) and (4) of the said Table. TABLE Sl. No. Description of sugar Duty of free sale sugar Excise levy sugar 1. Sugar produced in a factory during the period commencing on the 1 st day of October, 1974 and ending with the 30th day of November, 1974 in excess of the average production of the corresponding period of the preceding five sugar years in respect of which - (a) the overall production of the factory for the entire sugar year does not equal the average production of the preceding five sugar years. quintal Rs. 60 per quintal Rs. 16 per (b) the overall production of the factory for the entire sugar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sugar house products left over in process at the end of the base period or earlier shall be taken into account; and (ii) 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. In the case of a factory which had gone to production for the first time after 19-7-1968, the first two years of production shall not be taken into account while computing average production of the preceding five sugar years. 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. 4. Nothing contained in this notification shall apply to a factory which has been producing sugar only for three years or less. 2. Subsequently, the Government of India issued a corrigendum to this notification on 14-7-1975. The purpose of the corrigendum was to take away the second sentence in paragraph 3 of the said notification and read it as a separate paragraph, namely, paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the respondents therein, namely, the Assistant Collector of Central Excise, Pondicherry and the Union of India, Ministry of Finance (Department of Revenue and Insurance), New Delhi, to grant the respondent herein its claim for rebate of Rs. 6,59,104 under the terms of the Notification No. 146/74-C.E., dated 12-10-1974. We may mention straightaway that there is no controversy before the court that if the calculation of the respondent is correct it is entitled to a rebate of Rs. 6,59,104 and if, on the other hand, the calculation of the Assistant Collector of Central Excise, Pondicherry, is correct, the respondent would be entitled only to Rs. 1,12,660 by way of rebate. 4. An elaborate counter affidavit was filed on behalf of the appellant herein before the learned Judge, putting forward the contention that the production of the total quantity of 42,360 quintals of sugar has to be divided only by 2 and should not be divided by 5. The writ petition came to be disposed of by Gokulakrishnan J. The learned Judge allowed the writ petition by issuing a writ of mandamus as prayed for. It is against this judgment and order, the writ appeal has been filed. 5. We shall now refer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of sugar in 1960, and therefore, the respondent is a factory which commenced production prior to 1967-68. Paragraph 4 of the Explanation which we have already extracted states— "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." 9. We have already given the particulars of production in the respondent factory. That shows that during the years 1969-70, 1970-71 and 1971-72, though the production of sugar during the months of October-November was nil, yet the production cannot be said to be nil during the sugar year as such. Consequently, paragraph 4 on its own terms, will not apply to the respondent. However, as soon as we put this position to the learned Counsel for the appellants, Mr. U.N.R. Rao, he wanted us to read paragraph 4 as if, after the word 'production' in the commencement of the paragraph, the words 'during the relevant months or corresponding period' were present and not to read the word `production' as indicating production during the whole of the suga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 226 of the Constitution of India. Just now, Article 226 (3) of the Constitution of India as amended by the Forty-second Amendment is no logger in force. Independent of this, the matter in controversy in the writ petition did not involve any investigation into controverted questions of fact, and merely involved an interpretation of the statutory notification of the Government of India referred to above. In such a context, we are of the opinion that the respondent was justified in approaching this court under Article 226 of the Constitution of India and the fact that the respondent should have filed a suit is no bar to this court granting relief under Article 226 of the Constitution of India. In these circumstances, the appeal fails and is dismissed. There will be no order as to costs. 12. After we dictated the above judgment, Mr. U.N.R. Rao, learned counsel for the appellants, orally applies for the grant of a certificate under Article 133 of the Constitution of India for preferring an appeal to the Supreme Court of India. We are not satisfied that the matter involved a substantial question of law of general importance which in our opinion needs to be decided by the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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