JUDGMENT
1. Petitioner seeks direction to opposite-party No. 2 to refund the balance amount of Rs. 56475/- and Rs. 1,33,666.10 to the petitioner which is pending disposal with the respondents. According to the petitioner he is eligible for the total amount of refund claim of Rs. 97,256.25 under Notification No. 132/82 and for Rs. 5,73,390.00 under Notification No. 135/83. However, it is admitted that out of the same amount the amount of Rs. 40,791.15 and Rs. 4,42,724.00 have already been refunded to the petitioner, the petitioner is entitled for the balance amount as aforesaid for which he has made a prayer. The challenge made by the petitioner is that the respondent No. 2 by not disposing of the same is acting as against the instruction of the Central Board of Excise and Customs (Annexure 10 to the writ petition). According to the petitioner on account of this claim of refund which is pending since long, the petitioner is suffering a great financial loss. In the counter-affidavit filed on behalf of the respondents it has been stated that the petitioner has submitted a rebate claim under Notification No. 132/82 dated 21st April, 1982 on 3250 quintals, namely 1137.50 quintals on free sale sugar amount to Rs. 45,500.00 and on 2112.50 quintals on levy sugar amount to Rs. 51,756.25. This is the total amount of Rs. 97,256.25 as aforesaid. This includes 1415 quintals on brown sugar. Since petitioner did not observe the procedure, as such their claim was examined on the basis of last come and first go and the rebate was allowed at the rate applicable to the levy sugar. So far as free sale sugar is concerned, no rebatable sugar was cleared. Further...quintals was not cleared but the rebate was allowed at the existing rate with the direction that the same has to be adjusted according to the duty actually paid, for the remaining balance the petitioner is directed to submit the details of clearance of available sugar out of the brown sugar reprocessed for ascertaining the quantum of levy sugar and free sale sugar. The petitioner, therefore, submitted the same and on scrutiny the clearance chart reveals that the petitioner reprocessed 827 quintals on which rebate has already been allowed.
2. So far as other claim of the petitioner in pursuance to Notification No. 135 of 1983 dated 30th April, 1983 is concerned, the situation is similarly stated in the various existing paragraphs of the counter-affidavit. It has been stated that the rebate claimed was passed strictly on the provisions of the Notification which says that amount of exemption, calculated at the rate specified in columns 2 & 3 of the table shall not exceed the amount of duty of excise payable on free sale sugar or levy sugar. Hence no amount under the captioned notification is pending payment to the petitioner. Similarly in Paragraph 19 of the counter-affidavit it has further been stated that there is no amount pending payment except one claim towards Notification No. 132/82 dated 21st April, 1982 for brown sugar, namely 1415 quintals which is pending due to non-receipt of test memo for 827 quintals of Below Indian Standard Sugar which was reprocessed by the petitioner on which rebate has already been allowed. This Paragraph 19 has not been denied in the rejoinder affidavit. Looking to the overall facts emerged from the petition, the claim of the petitioner for a direction for disposing of the refund claim is not pending before the respondent authority. Hence no such direction could be issued to respondent authorities for passing appropriate orders on the same.
3. Learned counsel for the petitioner has referred to some of the paragraphs of the rejoinder affidavit wherein they have denied the allegation in the counter-affidavit that the petitioner has not followed certain procedure. However, we are not concerned in this case regarding the merits of the order passed which according to the counter-affidavit has already been disposed of. If the petitioner is aggrieved by means of any order passed for refund on file merits of the same, there is a remedy to the petitioner to the appeal under Section 35 of the Central Excises and Salt Act, 1944 this it is not necessary for us to go into that question. In Paragraph 7 of the counter-affidavit it has been stated that the petitioner was asked to submit the test memo for 827 quintals duly attested by the Central Excise Officer whereas they have submitted the same without attestation. Hence the claim of rebate on available sugar has not yet been decided. To this learned counsel referred to paragraph 6 of the rejoinder affidavit that the petitioner has sent a copy of the test memo duly attested by the Central Excise Officer (Resident Inspector) on its back side under covering letter dated 18th February, 1987 through registered post to respondent No. 2, copies of which has been annexed. However, this is a factual averment and it is not possible for us in the present proceeding to go into the same. However, in case the averment made in paragraph 6 of the rejoinder affidavit shows that attestation has been made according to law, then if it is pending as admitted in paragraph 7 of the counter-affidavit, may be disposed of, in case there is such an attestation within a period of six weeks of the presentation of a certified copy of our order passed today before the said authority.
4. The writ petition is accordingly partly allowed. Costs on the parties.
Certified copy of this order be supplied to the learned counsel within ten days on payment of usual charges.