ORDER
K.S. Venkataramani, Member (T)
1. This is an application for rectification of mistake under Section 35C(3) of the Central Excises & Salt Act, 1944 said to arise out of Order No. 634 & 635/91-C dated 5.8.1991 of the Tribunal 1991 (37) ECR 411 (Cegat SB-C). The Ld. Counsel, Sh. V. Sridharan, appeared for the applicants and addressed arguments on the rectification application. He submitted that the applicants effected clearances of pure liquid carbon dioxide for aerated water manufacture for which they availed of exemption only under Notification 175/86 and that for customers other than aerated water manufacturers, clearances are effected under Notification 40/85. The detailed break-up of these two types of clearances was set out in appeal memo filed before the Tribunal and for the period 1.4.1986 to 31.8.1986 the quantity cleared under Notification 175/86 was 4,65,287.5 kg. and the quantity cleared under Notification 40/85 was 2,47,258.5 kg. The Department had denied the exemption under Notification 235/85 only on the ground that the final manufactured product, namely, pure liquid carbon dioxide cleared by the applicants have been affected at nil rate of duty under Notification 175/86. The Ld. Counsel urged that the Tribunal had found that the applicants were not eligible for Notification 40/85 on the ground that there was no evidence to show whether the applicants have satisfied the condition in the proviso to that notification which stated that exemption contained in the notification shall not apply to carbonic acid which is used in the manufacture of beverages or aerated water. The Ld. Counsel pleaded that this portion of the Tribunal’s order represents as an error apparent on record because the record clearly shows that the entire demand raised in the present case does not relate to ultimate manufacture of aerated water. Only 4,65,287.5 kg. related to supplies made to aerated water manufacturers. The balance of 2,47,258.5 kg. related to supplies made to non-aerated water manufacturers. It was submitted that in any view of the matter, the demand relating to clearances of pure carbon dioxide, not used in beverages/aerated waters made by the applicants availing of exemption under Notification 40/85, would not be correct and this is an error apparent on record and is to be rectified. A further submission made was that the carbon dioxide, purchased by the applicants, is used only in the manufacture of pure liquid carbon dioxide and the same would be used for industrial purposes, and on this basis, exemption under Notification 40/85 will be available.
2. This aspect and submissions have not been considered by the Tribunal. It was also argued that the Collector (Appeals) had denied the exemption under Notification 40/85 on the ground that Notification 235/85 was more specific as compared to Notification 40/8,5, but it is well settled that this criterion is more relevant for deciding classification and not while considering eligibility to two or more exemption notifications. The Ld. Counsel pointed that the settled legal position is that the assessee can avail of benefit even of both notifications if the conditions are satisfied. Further, the Ld. Counsel relied upon the Supreme Court decision in the case of Coromandal Fertilizers v. Collector of Central Excise to say that in the interpretation of exemption notification, the intention of the government is not to be ascertained by comparing expression used in two different notifications. Therefore, the departmental authorities cannot rely on the expression in the Notifications 235/85 and 40/85 to say that Notification 40/85 relates only to impure carbon dioxide.
3. Ld. Jt. C.D.R., Sh. Bhatia contended that the application for rectification of mistake is not maintainable as the whole case is being sought to be re-argued which is not within the scope of such an application. The demand for duty in this case has been made with reference to the ineligibility.of the applicants for notification 235/85. The eligibility to die other notification 40/85 is only an alternative plea. That the applicants are not eligible for notification 235/85 has already been upheld by the Tribunal in its order. The Ld. Jt. C.D.R. also referred to the reasoning of the Collector (Appeals) to say that Notification 40/85 is applicable only to impure carbon dioxide.
4. The submissions made by both sides have been carefully considered. The question is whether there is an error apparent on record in relation to the finding of the Tribunal that there is no evidence to establish eligibility to exemption under Notification 40/85 in the absence of data regarding sales of the goods to the aerated water manufacturers. The applicants, herein, have Shown that they have made submissions relating to their quantity cleared for aerated water manufacturers and others in their appeal memo. It is seen that para 4 of the appeal memo does contain the particulars as split up between clearances under Notifications 175/86 and 40/85. The Tribunal’s observation regarding this aspect was based on the submissions of the applicants before the Tribunal, as recorded in the Stay Order No. 20/88 dated 28.1.1988. However, it is seen that there is more specific data, which was already available on record. The plea of the applicants is that in any case the demand could not cover that portion of the clearances to manufacturers other than that of aerated waters. It is also correct that the settled position in law is that as expressed by the Supreme Court in the Coromandal Fertilizers case (supra) we are not to ascertain the intention of the government by a comparison of expressions used in two different notifications. It is also well settled that where there is more than one notification available to die assessee, such assessee can avail of the notification, provided the conditions thereto, are satisfied and this submission of die applicants made before the Tribunal has already been recorded in its order. Therefore, die ground taken by the Collector (Appeals) for not considering their alternate plea for Notification 40/85, is not sustainable. But the Tribunal had, in its order, referred to the lack of evidence for establishing whether the applicants are hit by the proviso or not to the Notification. On this aspect, it is now stated that there was data already available. However, this data is subject to verification and as such it is held that it will be appropriate to dispose of the present rectification application to the extent that the alternative claim for eligibility to Notification 40185 may be considered by the Assistant Collector having jurisdiction on verification of the claim regarding quantity so cleared for each purpose, namely, for aerated water manufacturers and for others and the demand may accordingly, be re-determined, if so called for, after such factual verification, in which process the Assistant Collector may also afford an opportunity for the applicants to establish their claim with regard to that quantity of clearances said to have been made for manufacturers other than aerated waters. The other submissions made before us for exemption under Notification 40/85 that the manufacture of pure carbon dioxide was itself for industrial use, having not been made earlier does not arise out of the order of the Tribunal, and therefore, cannot form a part of rectification application under Section 35C(3). The application is, accordingly, disposed of in the above terms.