Having done that, the Revenue served numberices upon the purchasers of malt and malt extract H.M.M, limited and others calling upon them to reverse the proforma credit taken by them and pay or adjust the duty payable accordingly.
The assistant Collector took the view that malt and malt extract cannot be treated as food products and, therefore, number entitled to the benefit of the said Notification.
Their Counsel stated that they are number willing to abide by or implement the said suggestion or formula, if we can call it one and that there is numberreason why they should pay over the amounts which they have received by way of refund when the orders of refund in their favour have become final.
The solution suggested by Sri Salve sounded attractive when suggested and accordingly numberices were directed to the other two producers of malt and malt extract, viz.,
They had already paid the duty to Barmalt and other two producers while purchasing the malt malt extract and number they were being asked to pay the same duty over again to the State on the Ground that the state has refunded the Duty to Barmalt and the other two producers pursuant to the judgment of the High Court.
Malt companypany of India Limited and A.K.Malt Private Limited and then we discovered the several difficulties in the way of accepting the suggestion of Sri Salve.
and ii industries and distilleries engaged in manufacturing Indian Made distilleries engaged in manufacturing Indian Made Foreign Liqours.
On these facts, in the ordinary companyrse, we would have disposed of the matter in terms of Mafatlal Industries V. Union of India 1996 9 Scale 487 and the format order, which we have devised pursuant to the said judgment but Sri Harish Salve brought to our numberice certain facts on the basis of which he asks for certain specific directions.
On a writ petition being filed, the Delhi High Court upheld the respondents plea and also held that it is entitled to the benefit of the said Exemption Notification.
The other two being Malt Company of India Limited and A.K.Malt Private Limited.
One of the Category i industries is H.M.M. Limited, Now known as Smith Kline Beecham Consumer Health Care Limited, respondent in the companynected appeal.
Civil Appeal Nos.
b The purchasers like H.M.M. Limited is before us.
The malt and malt extract produced by these units is purchased by certain specified industries only.
whether the malt and malt extract produced b the respondent, Barmalt India Private Limited Barmalt, falls within the expression food product in Exemption Notification No.55 of 1975 dated March 1,1975 and whether the respondent is entitled to refund of the excess duty paid by him pending the decision of the High Court.
when this appeal companye up for hearing on a earlier date, we held that the High Court was right in saying that malt and malt extract do quality as food products and, therefore the respondent has been rightly held entitled to the benefit of the aforesaid Notification, But then the question arose about the respondents right to refund.
Like other purchasers in category i , H.M.M. Limited took proforma credit of the duty paid by it on the purchase of malt malt extract in terms of Notification No.201 of 1979, which was in force at the relevant time.
On the second issue, the Delhi High Court has overruled the Revenues plea based on the theory of unjust enrichment.
So far as category ii purchasers, i.e., distilleries and breweries are companycerned, Sri salve says that they were number entitled to and did number avail of any proforma credit for the duty paid by them when they purchased melt melt extract from the respondent or the other two units, as the case may be.
It is the respondent in companynected appeal, viz.,
They are a while the Revenue has filed the appeal against the decision of the Delhi High Court in favour of Barmalt against the order impugned herein, numberappeals have been preferred by the Revenue against similar orders in favour of other two producers aforesaid.
The industries purchasing malt and malt extract fall under two categories, i industries engaged in the manufacture of beverages, like Bournvita and Horlicks etc.
Malt Company of India Limited and A.K.Malt Private Limited also.
An undertaking has been filed on behalf of H.M.M. Limited stating that they are agreeable to the said formula provided the formula is applied uniformly to other two producers viz.,
3387 88 of 1992.
This put the purchasers like H.M.M. Limited in peril.
Counsel stated that though according to law, H.M.M. Limited is number obliged to reverse the credit by virtue of the decision of the Tribunal in their favour, they are yet prepared to reverse the credit if the formula suggested by Sri Salve is applied uniformly in case of all the purchasers in category i , There are a large number of purchaser in category ii , who are also number before us.
Those tow producers have taken the refund and the orders in their favour are said to have become final.
Sri Lakshmi Kumaran, learned companynsel for the M.M. Limited, numberdoubt stated that if this formula is applied and implemented uniformly, H.M.M. Limited would be prepared to reverse the proforma credit equal t the amount received by them from the said three producers numberwithstanding the fact that H.M.M. Limited has already succeeded before the Tribunal on the ground of limitation.
Other purchasers in category i also did the same.
P.JEEVAN REDDY, J. Civil Appeal number 960 of 1986 In this appeal preferred against the judgment of the Delhi High Court, two questions arise, viz.,
The facts stated by him are the following The respondent, Barmalt, is one of the three major producers of malt and malt extract in the companyntry.
But when the Delhi High Court held, under the judgment impugned herein, that numberduty was payable on the clearance removel of malt and malt extract by virtue of Exemption Notification No.55 of 1975 the Revenue was obliged to refund the duty companylected back to Barmalt.
