KARAMAT NAZIR BHANDARI, J.--- This judgment will dispose of Writ Petition No. 2815 of 1979 and Writ petition No.. 3598 Of 1979 as the two involve common questioning for disposal.
2. The petitioner mill produces sugar and for purposes of levy of duty, its capacity has been fixed at 23000 tons under the Excise Duty on production Capacity (Sugar) Rules, 1972. For the crushing Season 1972-73 which commenced on 23.11.1972 and closed on 28.03.1973, the mills worked for 126 days. However, actual crushing took place only on 108 days. Vide Annexure-G, The petitioner-mills applied to the Central Board of Revenue for abatement to the extent of Rs. 11,92,996/- under Rule 4 of the Rules, 1972. The claim was rejected which led the petitioner-mills to file writ petition No. 2270 of 1973. This petition was allowed and the case was remanded. On remand, on 12.08.1975, the claim was again rejected.
2. In judgment as 1978 SCM R 27, Delivered on 30.08.1978, the Supreme Court declared the law that in such cases of abatement, instead of the Central Board of Revenue applying general criteria, it ought to process every case individually, keeping in view the facts and circumstances of each case. On the basis of the law thus declared, the petitioner applied for review of the order of C.B.R. dated 12.08.1975. This review was duly entertained and heard. Vide order dated 03.05.1979, Annexure-B, the claim of the petitioner-will was partially allowed. The C.B.R. allowed the claim of the abatement to the extent of the period when the mills aid not work on account of non-supply of sugar cane but rejected to the extent of stoppage of mills on account of mechanical, chemical and electrical failures general cleaning and miscellaneous handicaps. It is against this partial refusal that this constitutional petition (W.P. No. 2815/79) is directed.
3. In Writ Petition No. 3598 of 1979, the only difference is that the claim pertains to the crushing season of 1973-74. The claim was to the tune of Rs. 31,03,370 and was based on the ground of poor quality of cane, floods, break downs on account of mechanical and electricity faults. The Central Board of Revenue allowed the claim to the extent of Rs. 11,94,370/- only. Again review was presented and vide order dated 03.07.1979, a further relief to the tune of Rs. 1,83,786.90 was allowed to the petitioner mills but the claim as regards the rest was disallowed. This rejection of the claim was again based On the finding that non-working of the mills on account of mechanical and electrical defects and general cleaning, etc. was not some thing beyond the control of the mills and, therefore, under Rule-4 of the Excise Duty on Production Capacity (Sugar) Rules, 1972, the petitioner-mills was not entitled to the same.
4. The fate of the petitions depends upon the interpretation of Rule 4 of the Excise Duty on Production Capacity (Sugar) Rules, 1972 which for facility of reference is reproduced below: "If in a financial year, the actual production of sugar of a factory, for reasons which, in the opinion of the Central Board of Revenue, were beyond the control of the manufacturer, falls short of its production capacity to such extent as the Central Board of Revenue considers to be substantial the Central Board of Revenue may, in its discretion but with the prior approval of the Federal Government grant abatement of duty leviable under rule 3 at such rate and to such extent as it may consider proper."
It will be seen that this rule empower the Central Board of Revenue to grant abatement of duty leasable under Rule 3 at such rate and to such extent as it may be considered proper, if it forms an opinion that the actual production of sugar of a factory falls short of its production capacity for reasons which are beyond the control of the manufacturer. The perusal of the impugned order shows that the C.B.R. have given no reason. whatsoever as to how the case of non-availability of sugar-cane for which the abatement has been allowed is different from the failure in the manufacturing process on account of mechanical defects and electrical interruption, etc. for which the. relief has been declined. If the first situation is beyond the control of the manufacturer, so is the second situation where inspite of best vigilance and application human devices, the machinery may failure the supply of electricity may be interrupted due 'to some thing going wrong either at the source or during transmission of the electricity. These things are inherent in the working of the modern machinery and inspite .of the be of human efforts, these eventualities have not been totally overcome. There seems to be no, rational basis in distinguishing the two situations. Reliance by the learned counsel for the petitioners on 1989 C.L.C.694 in this regard is correct and respectfully the view is followed.
5. Learned counsel has referred to an earlier order of the Board of Revenue dated 29.12.1975 where the Board granted abatement in duty on account of electrical and mechanical failure to this very Mills for the crushing season 1974-75. It is surprising that the Board in administering same law comes to different conclusions on same situation, on two different dates.
6. For the reasons noted above, those two petitions are allowed and the impugned order partially refusing the claim of abatement is hereby declared as without lawful authority and of no legal effect, Resultantly, the claim for abatement on account of electrical and mechanical failure, etc. shall also be deemed to be pending with the respondent-Board which shall now be proceeded with and decided in accordance with law expeditiously. The parties are left to bear their own costs.