1. M/s. Deccan Sugar & Abkhari Co. Ltd., Madras (hereinafter referred as the appellant) filed Revision Application under Section 36 of the Central Excises and Salt Act, 1944 (hereinafter referred as the Act) before the Government of India against the order No. A. 294/76 (G)-C.No. 7/1/28/6 dated 21st June 1977 passed by the Appellate Collector of Central Excise & Customs, Madras. The R.A. has been transferred to the Tribunal by virtue of the provision of Section 35-P of the Act to be disposed of as Appeal.
2. The Appeal was earlier dismissed for default of appearance on 7th of June, 1983 and Order was dictated immediately in the Court. However, the appellant's Advocate appeared on the same day before the Court and submitted that he has delayed by breakdown of his car. The dismissal order was set aside on the 8th June, 1983 and case fixed for hearing today.
3. At present the appellant is a Division of M/s. Nava Bharath Ferro Alloys Limited because under the scheme of amalgamation sanctioned by the Hon'ble High Court of Judicature, Madras and of Andhra Pradesh at Hyderabad, under respective orders passed on 28th of April, 1982 and on 24th of December, 1981 it became amalgamated with the said Nava Bharath Company. The appellant's Appeal is continued by virtue of Clause (3) of the said High Court's Orders, copies of which have been submitted before us.
4. The question for our determination is whether under the Notification No. 146/74-C.E. issued by the Central Government under Rule 8 of the Central Excise Rules, 1944 the appellant was entitled to rebate on excess production as claimed, or the Revenue's approach that only on percentages of average production rebate was permissible, is correct.
5. The above said question has been decided by us against the Revenue vide our decision dated June 15, 1983 (Order No. 392-D/1983 in Appeal No. 95/78 in the case of M/s, Bhopal Sugar Industries Limited, Sehore, Madhya Pradesh). Not only that, in a later decision dated June 23, 1983 in the case of M/s. Krishna Sahakari Sakhar Karkhana Limited (Appeal No. 149/76-D), we have noted that not only two Judgments in the case of Shakti Sugar Mills cited as 1983 ELT 484, Madras and in the case of India Sugars & Refineries Limited, Hospet cited as 1983 ELT 209 of the Madras High Court and the Karnataka High Court respectively favour the appellant's stand; but in respect of an earlier Judgment dated 2nd of August, 1979 of the Hon'ble Madras High Court in the case of New Horizon Sugar Mills Pvt. Ltd., wherein a similar view was taken, the Revenue sought permission of the Hon'ble Supreme Court of India to file Special Leave Petition which came to be dismissed on 13th of February, 1981. A copy of the record of proceedings before the Hon'ble Supreme Court of India has been filed before us in the case of M/s. Krishna Sahakari Sakhar Karkhana Limited and we noticed that the Petition was dismissed after hearing Shri L.N. Sinha, Attorney-General of India and the Mills' Advocates Messrs S. Ramasubramanian, H.K. Datta and D.N.Gupta.
6. We have not considered it necessary to re-produce the Notification in this Order because in the two cited cases of this Bench itself, the same has been discussed.
7. Shri K.P. Jagadeeshan, Advocate, for the appellant submitted that the necessary workings of the rebate has been given along with the Revision Application. We do not propose to involve ourselves with such detailed workings as such. Since we have held in more than one case that exemption rebate as contemplated in the Notification No.146/74-Supra was on excess production and not on average production, we are following the same approach in this case.
8. If the Excise Authorities are satisfied with the mathematical workings given by the appellant, the same should be accepted.
Therefore, by following our decision as also the various Judgments of the High Courts noted in this Order, we allow the Appeal with direction that effect to this Order be given not later than three months from the receipt of this Order by the concerned Excise Authorities.