ORDER
S.D. Jha, Vice-President (J)
1. None is present for the respondents in spite of notice of date of hearing issued on 11-9-1986 and sent by registered AD post. We proceed exparte against the respondents and have heard Shri Sundar Rajan, J.D.R for the appellant i.e. Collector of Customs, Bombay. Shri Sundar Rajan submitted that Phenol USP grade is not a drug and, therefore, would not be eligible for exemption under Notification No. 234/82-C.E., dated 1-11-1982 as amended by Notification No. 174/83, dated 30-6-1983. He submitted that the Collector (Appeals) was in error in following the CEGAT’s decision in the case of Fairdeal Corporation Pvt. Ltd., Bombay v. The Collector of Customs, Bombay [1984 (16) E.L.T. 368 (Tribunal) because this decision related to a period prior to amendment of the Notification on 30-6-1983 by deletion of the words ‘drug intermediates’ in the Notification. Shri Sundar Rajan, however, in fairness drew attention of the Bench to a decision of the Bombay High Court in the case of Rakesh Enterprises and Anr. v. Union of India and Anr. [1986 (25) ELT 906 (Bombay)] and stated that in this decision the hon’ble Bombay High Court had held that Phenol USP grade is a drug and drug intermediate for the predecessor Notification No. 55/75-C.E., dated 1-3-1975. He submitted that the respondents at no stage claimed that Phenol USP grade is a drug. He urged that in view of the Bombay High Court decision the matter may be remanded for de novo consideration to the lower authorities.
2. We have carefully considered the submissions of Shri Sundar Rajan. We do not see what purpose is going to be served by remanding the matter to the lower authorities. The respondent’s claim for concession with respect to additional duty was on the basis that Phenol USP grade is eligible for concession under the exemption Notification No. 234/82-C.E., dated 1-11-1982 as amended. It is not of importance whether the appellant call it a drug intermediate or a drug when there is a clear finding by the Bombay High Court with respect to the same product in another case holding the same to be drug as also drug intermediate. Even though the Collector (Appeals) may have been in error in following the decision of the Tribunal, the Bombay High Court’s decision changes the whole complexion of the appeals. In view of the Bombay High Court’s decision we do not think that we should disturb the relief granted to the respondents by the Collector (Appeals). We, therefore, uphold the impugned orders though for different reasons as aforesaid. The appeals are thus dismissed.