SANTOSH ENGINEERING Vs. CEGAT

JUDGEMENT

(1.) IN this writ petition petitioner has assailed the orders (P-8), (P-9) and (P-10), appellate orders (P-13) and (P-17) and the order passed by the CEGAT.

(2.) PETITIONER M/s. Santosh Engineering is a proprietorship concern of Shri Santosh Awasthi, an engineer, used to manufacture evaporative type of coolers. The unit was set up in the year 1984. It went into commercial production in February, 1985. Initially the goods manufactured by the petitioners were exempted from payment of excise duty if the turnover in any financial year does not exceed Rs. 2. 50 lacs. Exemption notification (P-l) to the aforesaid effect was issued on 1-3-1983. By yet another Notification No. 65/83 (P-2), the said notification (P-l) was amended. It was provided that in case if the turnover exceeds from Rs. 2. 50 lacs but up to Rs. 30 lacs, in that event the small scale industry manufacturer would be entitled to avail of payment of concessional rate of excise duty at the rate of 50%. Petitioner realized during financial year 1986-87 that his annual turnover may exceed the limit of Rs. 2. 50 lacs, he applied for grant of license, which was issued on 1-4-1986. Petitioner started making payment of excise duty at the concessional rate of 50% of the rate of excise duty and started availing the benefit of Modvat on inputs as he was holding a license. During financial year 1986-87, Notification (P-3) No. 265/86, dated 24-4-1986 was issued. The product of the petitioner was exempted from payment of excise duty by enhancing the limit from 2. 50 lacs to Rs. 15. 00 lacs. The notification further provided that till the petitioner exceed a turnover of Rs. 10 lacs, they were exempted from license. Notification No. 175/86, dated 1-6-1986 exempting from license was issued on 1-6-1966. Petitioner surrendered the license for cancellation on 12-5-1966 and applied for refund of duty deposited between 1-4-1986 to 24-4-1986 as by that time, they had not exceeded the exemption limit as provided in the notification. Superintendent, Central Excise wrote to the petitioner that the license granted to the petitioner cannot be cancelled because they have already availed of the Modvat in the beginning of financial year. Show cause notice was issued and three orders (P-8), (P-9) and (P-10) were passed for the different period. Order (P-8) was passed for the period 16-7-1986 to 31-3-1987, (P-9) was passed for the period 27-4-1986 to 15-7-1986 and order (P-10) was passed for 1-4-1986 to 24-4-1986, determining the total turnover of the petitioner and imposing the liability for excise duty. Petitioner filed a writ petition W. P. No. 3262/1987 as against the aforesaid three orders (P-8) to (P-10), which was admitted for final hearing. However, petitioner was relegated to the alternative remedy of filing the appeals as per order (P-11) dated 22-8-1989 passed by this Court. Appeals were required to be filed within thirty days. Petitioner accordingly filed the appeal before the Appellate Authority within thirty days but one common appeal was filed as against the three orders instead of three appeals. The Appellate Authority entertained the appeal with respect to the first order and gave the liberty to the petitioner to file two separate appeals with respect to two others orders. Appeal covering the period 1-4-1986 to 24-4-1986 was entertained in relation to refund. Petitioner thereafter, assailed the appellate order before CEGAT by way of filing appeal, in which order (P-18) was passed dismissing the appeal. Petitioner also preferred two separate appeals No. 72/92 and 73/92, which was "as per" the liberty granted by the Appellate Authority, however, appeals were dismissed by the Appellate Authority as barred by limitation as this Court has given thirty days time to file the appeals and only one common appeal was filed, thus appeals were dismissed as barred by limitation as per common order (P-16) passed in the aforesaid two appeals. An appeal was also filed as against the aforesaid order (P-16) before CEGAT, which was also dismissed as per order (P-17) dated 10-7-1997, hence this writ petition has been preferred by the petitioner assailing the aforesaid orders.

(3.) SHRI A. D. Deoras, learned counsel appearing for the petitioner has submitted that once exemption was granted w. e. f. 24-4-1986 to the evaporative coolers, in case total turnover does not exceed Rs. 15 lacs, same has to be given effect to for the entire financial year w. e. f. 1-4-1986 to 31-3-1987, thus refund of the excise duty, which was paid by the petitioner, was required to be made.