1. This is a reference application filed by the Collector of Central Excise, Guntur in respect of Order No. ED (MAS) 495/83 dated 7-11-84 passed by the Tribunal. The following questions said to be of law have been raised for reference to the High Court of Judicature at Hyderabad : (1) Whether the credit is a concession granted under the Central Excise Law or an extra legal concession; (2) Whether the concession is governed by the limitation prescribed by Central Excise Law or by common law; (3) Whether the Tribunal constituted under the Act can quash the proceedings conducted under Central Excise Law and direct the parties to seek a remedy under a different Law in respect of the disputed amount, but at the same time allowing the party to enjoy the fruits of undisputed credit out of the same extra legal concession.
2. All the questions turn on whether the credit granted for excess production of sugar is an extra legal concession or not-this would normally be a question of fact to be determined by the Tribunal. A reference to the order of the Tribunal shows that it has followed the decision of the Bench of the Tribunal in the case of Collector of Central Excise, Bangalore v. Hiranyakshi Sahakari Karkhane Nigam Ltd.-Appeal No. ED (MAS) 135/83. In the Bangalore case, it was forcefully urged on behalf of Revenue that what is being given is an administrative concession. To quote, "What has been given is merely an accommodation or a credit from out of the Consolidated Fund." Revenue as such cannot go on shifting its stand, though I note that the present reference is from the Collector of Central Excise, Guntur, whereas the earlier decision which was followed in this case, related to the jurisdiction of the Collector of Central Excise, Bangalore.
Revenue has to be treated as one for the purpose of such questions involving the basic issues and of all-India import. In the light of the stand already taken by the Revenue in the case of 'Hiranyakshi Sahakari Sakkarc Karkhane Niyamit' it would not be open to it to take just the opposite view in the present case. As I have already observed, the question whether the procedure was an extra legal arrangement or one governed by the Act, would largely be a question of fact. In these circumstances, the application for reference is rejected.