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TMI Blog2003 (2) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter referred to as 'the Act & Rules, respectively'). 4.Government of India issued a rebate Notification No. 135/83, dated 30th April, 1983 with the intention to take more production of sugar in the lean period of the sugar year 1982-83. The sugar year starts on 1st October and ends on 30th September each year. Normally sugar production season commences in November of each year and continues for six months, i.e., up to April next year. The incentive period from 1-5-1983 to 30-9-1983 in terms of the relevant Notification No. 135/83 comes during the lean period (off season of the sugar year). In order to induce a sugar factory to produce more sugar, during the off season period, this incentive was given by way of rebate (refund) of Central Excise duties. The rebate was given on excess production of sugar produced during the incentive period as per notification on the basis of average production during the lean period of three preceding sugar years 1979-80, 1980-81 and 1981-82. The excess production in this incentive period had to be worked out in terms of the notification. Relevant portion of the notification reads as under : "Exemption to excess production during 1-5-1983 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d May, 1983 to September, 1983 for the sugar year 1982-83. For reference the sugar produced for the rebatable period for the preceding three years is tabulated as below : Base year Periods Production 1 2 3 1978-79 1-5-1978 - 30-9-1978 43434.400 quintals 1979-80 1-5-1979 - 30-9-1980 Nil 1980-81 1-5-1980 - 30-9-1981 Nil Total 3 years Total 3 periods Total 43,434.400 qtls. 6.The dispute between the department and the appellant is restricted to the short point. In the above table three years, three periods and productions are shown. According to the department, out of three years, two years are to be ignored for determining the average production of the base years. According to the appellant the average is to be calculated on the basis of three years and the periods of which there is no production are to be ignored and as such there will be an average of three years by dividing the total production of 44,434.400 quintals by three years as shown in the above table and that figure will be the average for rebate in terms of notification No. 135/83. By dividing the figure of 43,434.400, by three it comes to 14,644.80 quintals. According to the appellant on the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar in the three sugar years is provided in clauses (3) and (4). Clause (4) provides that if production of sugar in the lean period in the preceding three sugar years 1979-80, 1980-81 and 1981-82 is 'nil' then the entire production of sugar of such factory during the lean period between 1st May, 1983 to 30th September, 1983 shall be entitled to exemption under the notification. This clause is not applicable in the present case as there was production in one of the sugar years, i.e. 1979-80. Clause (3) provides that if the production of sugar in any of the three preceding sugar years 1979-80, 1980-81 and 1981-82 in a factory was 'nil' then the average production of sugar of the corresponding period of 1979-80, 1980-81 and 1981-82 for the purposes of the notification would be determined by taking into account only such of the period of which sugar was produced in such factory and the period in which sugar was not produced therein shall be ignored. 9.The contention of the Counsel for the appellant is that average has to be worked out on the basis of all the three base years and not only on the basis of production of one year during the corresponding period of which factory has produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while arriving at average production of the three sugar years. As there was no production in the two years, the period of two years has to be ignored for the purposes of calculating average production. Average production is to be arrived at notwithstanding that only one year out of three preceding years is left for working out average. The use of the word 'any' in clause (3) in the context of the notification has to be interpreted to mean in one or two years. Average production of the three preceding years where there was no production in two of the three preceding years cannot be arrived at by dividing the production of one year by three. Had that been the intention then it would not have been provided in clause (3) that the period in which there was no production is to be ignored. The use of the words 'any of the three sugar years' and then the words 'the average production of sugar years of 1979-80, 1980-81 and 1981-82 for the purpose of the notification be determined by taking into account 'only such of the period of which sugar was produced' coupled with the words 'the period in which sugar was not produced therein, shall be ignored' clearly indicates the intention that averag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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