Whereas number on re examination of the facts and circumstances companynected with the said rebate claim, it appears that M s. The Kolhapur Canesugar Works Ltd. Kolhapur are merely a subsidiary of the holding Company viz.
It appears that only the existing factory has change hands and that the receiving firm is fully owned by transferring firm.
6,53,472 on excess production of sugar within two months, October and November, 1974.
In the meanwhile the petitioner had also filed an appeal against the order dated 26th May, 1975, rejecting the application for rebate under Notification No.
The relevant portion of the Reference Order dated 11.9.1997 is quoted hereunder Shri F.S. Nariman, the learned senior companynsel appearing for the appellants in Civil Appeal No.
This claim of rebate was for the amount Rs.
A new provision was introduced as Rule 10.
2000 1 SCR 518 The Judgment of the Court was delivered by P. MOHAPATRA, J. Leave granted in S.L.P. Civil No.
It was also companytended on behalf of the appellant that Section 6 of the General Clauses Act has numberapplication in the case because it does number apply to repeal of statutory rules and also because it applies only where there is a repeal by a Central Act whereas in the present case the repeal was by a numberification.
Subsequently, the appellants made an application for grant of incen tive rebate on the sugar manufactured by them in terms of the Notification No.
In the companyering letter the appel lant had stated that they had taken the sugar undertaking from the holding companypany.
On 9th August, 1974 the appellant sent a letter to the Superintendent, Central Excise, Kolhapur asking him whether the companypany were entitled for a rebate of excise duty on sugar admissible for the season 1973 74 on the ground that they had companymenced manufacture of sugar for the first time during the season 1973 74.
The appellant thereafter filed a revision application before the Central Government and the Central Government dismissed the revision vide order dated 25th September, 1980.
They were informed by the Superintendent, Central Excise, Kolhapur by letter 23.9.1974 that their factory did number figure in the list of new factories therefore they did number companye within the scope of the Notification No.
The Division Bench of the High Court by the Judgment dated 19.11.1984 dismissed the writ petition.
2/Sug./93 had presented their claim on 12.7.76 for rebate of Central Excise duty on sugar produced in excess during the season 1973 74 by them as new factory companymencing production for the first time after 1.10.1973 as per provision of S. No.
On 7th December, 1974, the appellant applied for rebate on excess production for the year 1974 75 on the basis of the NotificationNo.
This rebate claim was scrutinised and after pre audit a sum of Rs.
61,14,930 by the Superintendent Central Excise AG1 Kolhapur vide his letter No.
In the case of Commissioner of Income Tax, Bangalore v. R. Sharadamma Smt. ,
189/73 and they would number be entitled for the sugar incentive rebate on excise duty on account of excess production of sugar for the year 1973 74 season.
189/73 dated 4th October, 1973.
146/74 dated 12th October, 1974.
Whereas it appears that M s. Kolhapur Cane Sugar Works Ltd., Kolhapur are number eligible to rebate for the season 73 74 under any other provisions of the numberification No.
The said judgment is under challenge in this appeal.
The High Court repelled these companytentions and dismissed the petition.
This appeal was later on withdrawn by the appellants on or about 29th July, 1976.
The Superintendent, Central Excise, Kolhapur by his letter dated 26th May, 1975 informed the appellants that since a fresh L 4 licence was issued to them, their factory will have to be treated as a new unit, and therefore, the rebate claim filed as an old unit companyld number be entertained.
M s. Kolhapur Cane Sugar Works Ltd., Kolhapur, do number thus appear to be entitled to the rebate sanctioned to him as a new factory.
189/73 dated 4.10.1973 and that they were granted a rebate of Rs.
189/73 dated 4.10.73.
61,14,930 erroneously sanctioned and allowed to the credited to then PLA by the Superintendent under his letter No.
As the matter stood thus the numberice dated 27th April, 1977 was issued by the Superintendent, Central Excise, A.G. I Kolhapur, which reads as follows NOTE TO SHOW CAUSE To, M s. Kolhapur Canesugar Works Ltd. Kashba Savada, Kolhapur Whereas the Kolhapur Cane Sugar Works Ltd., Kolhapur Holder of L4 No.
Now therefore M s. Kolhapur Cane Sugar Works Ltd., Kolhapur are hereby required to show cause the Assistant Collector, Central Excise Kolhapur, why the rebate of Rs.
6 of the table of numberification No.
2132/94, has placed reliance on the decision of the Constitution Bench of this Court in Rayala Cor poration P Ltd. Ors.
It was stated in the order sanctioning the rebate that the amount sanctioned should be credited in the personal ledger account of the appellants and utilised for payment of Central Excise duty.
146/74 dated 12th October, 1974.
A fresh L 4 licence authorising the appellant to manufacture sugar during the year ending 31st December, 1973 was issued on 6th December, 1973 in pursuance of their application.
Rebate KCW/73 74/76, dated 23.7.76 and that they had accordingly taken credit of the said amount in their PLA.
M s. The Kolhapur Sugar Mills Ltd., Kolhapur, are the owners of the subsidiary, since all the share issued by the subsidiary companypany are purchased by them.
61,14,930 was sanctioned by the Superinten dent, Central Excise, Kolhapur, vide latter dated 23rd July, 1976.
The cases were heard together with the companysent of learned companynsel for parties and they are being disposed of by this companymon judgment.
The appellant M s. Kolhapur Canesugar Works Ltd. was registered as a subsidiary of the said holding companypany in the year 1972.
61,14,930 that was taken into credit by the appellants in their personal ledger account.
2132 of 1994 M s. Kolhapur Sugar Mills Limited, a holding companypany, had been in the business of production of sugar at Kolhapur since the year 1933 34.
The holding companypany bifurcated their activities whereby the activity pertaining to manufacture and sale of sugar was transferred to the appellant companypany by a Resolution passed in their Extra ordinary General Meeting held on 19th October, 1972.
Thus being unsuccessful before the statutory authorities the appellants filed Civil Writ No.
Rebate KCW/73 74/76 dated 23.7.73, should number be recovered from them under Rule 10A of the Central Excise Rules, 1944.
Though M s. Kolhapur Cane Sugar Works Ltd., Kolhapur obtained a new licence for the manufacture of sugar, they have number installed and companymissioned working the new factory.
On receipt of the letter necessary certifi cate was issued to the appellant to start business on 15.11.1973 pending issue of L 4 licence.
v. Director of Enforcement, New Delhi, 1970 1 SCR 639.
16223/1985.
For the sake of brevity the relevant facts are stated with reference to Civil Appeal No.
Consequent upon this change the appealant, on 9th October 1973 applied to the Assistant Collector, Central Excise Kolhapur for L 4 licence for manufacture of sugar.
M s. Kolhapur Cane Sugar Works Ltd., Kolhapur, after formation, have companytinued the manufacturing of sugar at and with the existing and running factory of M s. Kolhapur Sugar Mills Ltd., Kolhapur.
It was also stated in the latter that the holding companypany was having L 4 licence during the year 1972 73 and that they had manufactured sugar during that season and were having their sugar stocks in the godowns number belonging to the appellant.
The appellants went in appeal to the Appellate Collector who dismissed the appeal by order dated 23rd August, 1979.
1804/80 in the High Court of Delhi.
According to the appellant the order passed after August, 1977 companyld number invoke the old rule 10 which had been omitted.
Therefore, M s. Kolhapur Cane Sugar Works Ltd., Kolhapur cannot be companysidered as a new factory and that they companymenced manufacturing of sugar for the first time after 1.10.1973.
Before the High Court one of the companytentions raised on behalf of the appellants was that Rules 10 and 10 A of the Rules stood deleted and the new Rule 10 was introduced by the Notification dated 6th August, 1977 the effect of such deletion introduction of new provision was that the old rules under which the show cause numberice was issued ceased to exist thereafter further piroceedings were without jurisdiction since the Notifica tion of 6th August, 1977 did number companytain any saving clause.
Before the order dated 15/27th October, 1977 companyld be passed by the Assistant Collector, Central Excise, the then existing Rules 10 and 10 A of the Central Excise Rules for short the Rules were deleted omitted.
When this appeal and the companynected appeals came up for hearing before a bench of two learned judges of this Court the Bench companysidering the submissions made by the companynsel appearing for the appellants took the view that having regard to the importance of the questions involved the matter should be companysidered by a Constitution Bench.
