1. The facts of this case, is brief, are that the appellants claimed benefit of exemption Notification No. 145/74-CE dated 12.10.1974 (commonly known as incentive rebate for higher production of sugar).
They filed a refund claim for Rs. 45,144.45 on 25.8.1975. The Assistant Collector deducted a small amount out of it on account of re-processing loss and sanctioned their claim for Rs. 42,260.00 on 10.11.1975. The appellants took credit of the amount sanctioned in their Personal Ledger Account on 15 11.1975. Subsequently, through their Association etc., they learnt that Madras and Karnataka High Courts had interpreted the aforesaid notification in a different manner which was more beneficial to them. These High Courts had held that the various percentage slabs of concession in the Table annexed to the notification should relate to the excess production of sugar and not to its average production. Thereupon, the appellants submitted a revised claim for Rs. 1,56,898.83 on 2.4.1976 and asked for sanction of the balance amount.
The supplementary claim was received by the Asstt. Collector on 24.5.1976. The Assistant Collector did not agree with the view that the percentage slabs in the notification should relate to the excess production and he, accordingly by his order dated 11.11.1977, rejected the appellants' supplementary claim. In appeal, the Collector (Appeals) held that since the supplementary claim was under the same notification and related to the same set of figures of total production, average production and excess production on which the Asstt. Collector had already passed a considered order on 10.11.1975, the same authority, that is the Asstt. Collector, was not competent to review his own order of 10.11.1975 and pass another order. The Collector (Appeals) further held that the Asstt. Collector's second order dated 11.11.1977 could not be viewed as an order passed under the Central Excise Act and Rules, that, therefore, it was not an appealable order and that the appeal filed by the appellants before the Collector (Appeals) was not maintainable. The Collector (Appeals) added that the only order against which an appeal could have been filed by the appellants was the order which was passed by the Asstt. Collector on 10.11.1975 and that no such appeal was pending before the appellate authority. The Collector (Appeals) ordered that the appeal filed before him against the Assistant Collector's order dated 11.11.1977 be returned to the appellants. The appellants are in appeal before us against this order of the Collector (Appeals).
2. During the hearing before us, the appellants stated that the point at issue in this case was identical with the point already decided by this Bench by its order No. 37/1985-D dated 25.1.1985 passed in Appeal No. ED (SB) 603/83-D of Balrampur Chini Mills Ltd. 1985 ECR 752. In that case, those appellants had, inter alia, pleaded that Rule 11 did not say that the assessee should discover all his errors at one go only ; the assessee was, therefore, entitled to file supplementary claims within the limitation period of Rule 11. The Bench held in that order that there was no provision in Rule 11 similar to Section 11 of the Civil Procedure Code, barring an authority from taking up a ground which might and ought to have been made a ground in an earlier claim, that the point of interpretation involved in the supplementary claim was not before the Asslt. Collector when he passed his first order, that the appellants could not be considered to have been aggrieved by his first order because the Asstt. Collector had virtually sanctioned the entire amount claimed by them, that they had, therefore, no basis to file an appeal before the Appellate Collector against the Asstt.
Collector's first order, that there had, in fact, been no adjudication by the Asstt. Collector on the point of interpretation agitated in the supplementary claim and that, therefore, the Asstt. Collector was competent to consider the appellants' supplementary claim which had been held to have been filed in accordance with the terms of Rule 11 and within the limitation period prescribed in that rule. On the question of interpretation, the Bench reiterated its earlier view taken in a number of cases that the percentage slabs should relate to the excess production and not to the average production. The Bench, accordingly, allowed the appeal of M/s. Balrampur Chini Mills Ltd. and directed grant of consequential relief to them subject to the verification of the relevant dates, facts and figures by the Asstt.
Collector. The present appellants stated that an order in similar terms may be passed in their case also. They added that actual clearances of their excess produced sugar started on 7.11.1975 in the case of levy sugar and on 22.12.1975 in the case of free sale sugar.
3. The Department's representative stated that he had nothing to add to the submissions already made by the Department in the case of M/s.
Balrampur Chini Mills Ltd. 4. We have carefully considered the matter. We agree with the appellants that the point at issue in this case stands settled by the aforesaid order of this Bench in the case of M/s. Balrampur Chini Mills Ltd. We also notice that actual clearances of the excess produced sugar on payment of duty started some time in November, 1975 and December, 1975. No such duty payment having taken place till 25.8.1975, when the appellants submitted their first claim, their first claim could not, strictly, be considered a claim for refund of duty paid in excess in terms of Rule 11. The terms of Rule 11, however, applied to their second claim filed in April, 1976. It cannot, therefore, be said that consideration of the second claim by the Asstt. Collector amounted to a review of the first order dated 10.11.1975 passed by him. Accordingly, following the ratio of our said order, we allow this appeal and direct that consequential relief be granted to the appellants subject to verification of the relevant dates, facts and figures by the Asstt.