Judgment:
1. Notice dated 2-1-1977 was issued to respondents, M/s. Jagatjit Sugar Mills, calling upon them to show cause why an amount of Rs. 13,660.00 should not be recovered from them, under Rule 10A of the Central Excise Rules, out of the amount already taken credit by them in terms of Notification No. 203/72. The reason stated was that the said amount related to the excess production of sugar claimed by them in March 1973 but that they were not entitled to the same since there had been no production of sugar by them in the corresponding month of the preceding year. The respondents resisted the demand. On adjudication the Assistant Collector, under his order dated 10-5-1978, confirmed the demand under Rule 10A. The appeal against the same was allowed by the Collector (Appeals) under his order dated 29-9-1983. This appeal by the Collector of Central Excise, Chandigarh is against the said order.
2. None appeared on behalf of the respondents. We have heard Smt.
Saxena for the Department and have perused the records.
3. The Collector (Appeals) had pointed out in his order that in allowing the appeal he was following the judgment of this Tribunal in the case of M/s. Keshorai Patan Sahakari Sugar Mills Limited (1983 ELT 1209). That case arose under Notification No. 189/73. The Tribunal referred to certain other earlier judgments of the High Courts, and relied on the same, including the judgment of the Punjab and Haryana High Court in the case of M/s. Doaba Co-operative Sugar Mills. In the statement of facts in the present memorandum of appeal it is mentioned that an appeal has been filed in the Supreme Court against the judgment of the Punjab and Haryana High Court, as well as the judgment of this Tribunal, but it is not mentioned even whether the Supreme Court has set aside either of the said orders. We may in fact note that the Bombay High Court in the case of Yashwant Sahakari Sakhar Karkhane Ltd. (1986 Vol. 26 ELT 904) dealt with a case arising under Notifications 203/72 and 189/73 and came to the same conclusion as the Punjab and Haryana High Court. These judgments have all held that the fact that there had been no production of sugar in the corresponding period of the base year would not disentitle the factory to rebate in terms of the above notifications with reference to the production of sugar in the relevant year. The Bombay High Court has in this judgment taken note of all the earlier decisions of the several High Courts. We, therefore, hold respectfully following the said earlier decisions, that the respondents had been rightly granted the credit in respect of their production of sugar in March 1973 and there were no grounds for requiring them to recredit the same.
4. We may further note that the Bombay High Court has, on a consideration of all the relevant authorities, held that the demand as in the present instance would be governed by Rule 10 of Central Excise Rules and not Rule 10A. In this case notice had been issued on 20-1-1977 in respect of credit taken in respect of Production in March, 1973. The notice was obviously issued long subsequent to the expiry of the period of limitation prescribed in the Rule 10 (as it then stood for making such a demand). We hold that on that ground also the demand was liable to be set aside.
5. In the result we uphold the order of the Collector (Appeals) and dismiss this appeal.