ORDER
G.A. Brahma Deva, Member (J)
1. These are two appeals filed by M/s. Sh. Sant Eknath S.S.K. Ltd. against respective impugned orders involving a common issue and, therefore, they are clubbed together and are being disposed of by this common order. In Appeal No. E/217/89-D, the dispute relates to rebate claim with reference to Notification 132/82 and similarly Appeal No. E/218/89-D is concerned with the Notification No. 135/83-C.E., dated 30-4-1983. The issue involved in these cases is whether existence of the factory during each of the three sugar preceding years was condition precedent for eligibility in terms of aforesaid notifications.
2. It was a case of the department since the factory was not in existence during the preceding three years, benefit in terms of the notifications cannot be extended to that period or periods. It was brought to our notice by the ld. Counsel for the appellants that Notification No. 132/82 has been amended by Notification 193/82, dated 11-6-1982 wherein para 4 was substituted and accordingly where production during May to September in all the preceding three sugar years was nil the entire production during May to September, 1982 will be entitled to the exemption under the notification. It was contended on behalf of the appellants that the amended Notification 193/82 has got a retrospective effect relying upon the decision of the Tribunal in the case of C.C.E. v. Chengalrayan Cooperative Sugar Mills Ltd. reported in 1989 (39) E.L.T. 551 (Tribunal).
3. Shri D.S. Negi, ld. S.D.R. appearing for the revenue, submitted that since the factory itself was not existence during the preceding three sugar years, the question of production does not arise and accordingly the benefit in terms of notification cannot be extended. Further, he said, that the amended Notification 193/82 is applicable prospectively and this position was accepted by the Tribunal in the case of Changalrayan Coop. Sugar Mills Ltd. (supra).
4. We have carefully considered the matter. On perusal of the citations and taking into consideration the decision of the Bombay High Court in the case of C.C.E., Aurangabad v. Marathwada Sahakari Sakhar Karkhana Ltd. reported in 1987 (29) E.L.T. 614 (Tribunal), wherein it was held that the existence of factory during each of the three preceding years, is not a condition precedent for eligibility to rebate and further, it was observed by the Bombay High Court with reference to Notification 257/76, in the case of Balasahib Desai S.S.K. Ltd. v. Union of India reported in 1982 (10) E.L.T. 866 that the ascertaining of average production under Clause 3 of the notification is relevant only for the purpose of determining what quantum of rebate would be available to the manufacturer of sugar in the year 1976-77 and not for other purposes which can be ascertained even if a factory had not produced any sugar during any of the preceding five years. In view of the ratio of these decisions, it is clear that it cannot be said that petitioners were not entitled to the benefit of notification merely because sugar was not produced in each and every preceding year. We also take note of the factual position that Clause 4 of the notification has been amended by Notification 193/82 substitute Clause 4 to extend the benefit to the petitioner although the production during the preceding three sugar years was nil. In the facts and circumstances, following the ratio of the aforesaid decisions and in view of the amendment to the notification, we accept the contention of the party and, accordingly, party is entitled to get benefit in terms of Notification 132/83 in Appeal No. E/217/89-D. As regards Appeal No. E/218/89-D, it was brought to our notice by both sides that matter has already been remanded to the concerned Assistant Commissioner to calculate the rebate with reference to Notification 135/83. In view of this, we are not disturbing the findings of the Collector (Appeals) in Appeal No. E/218/89-D. Accordingly, we uphold that portion. Accordingly, we allow Appeal No. 217/89-D and Appeal No. E/218/89-D has been remanded to the concerned Assistant Collector for de novo consideration as directed by the Collector (Appeals). These two appeals are disposed of in the above terms.