ORDER
S.K. Bhatnagar, Vice President
1. This is a Department’s appeal filed with reference to the order of Collector (Appeals), Ahmedabad dated 29-11-1991.
2. Learned DR drew attention towards the appeal memorandum and stated that the basic issue involved in this case is the excisability and dutiability of ‘Phenol Formaldehyde Solution’ prepared by the respondents for use during the manufacture of industrial grade laminated sheets. They are using Phenol & Formaldehyde in the manufacture of laminated sheets through an integrated process in which the Phenol Formaldehyde Solution is used at an intermediate stage for impregnating the papers before converting them into laminated sheets.
3. In view of the amendment to Rule 9 and 49, a show cause notice was issued and the demand was confirmed by the A.C. but the Collector (Appeals) set aside the order. It was the Department’s view that the item was excisable and benefit of Notification No. 201/79 was also not available. Further, as Notification 187/83 came into force only with reference to 9-7-1983, therefore, for the period prior to this date, the benefit available to intermediate products was also not available. Hence, the Collector had erred in allowing the respondents’ appeal.
4. The Collector has held the goods as non-excisable and in the alternative, eligible to the benefit of Notification No. 201/79. Hence, the Department was aggrieved.
5. The notice for hearing was duly sent to the respondents but has been returned undelivered and the respondents have sent written submissions.
6. In the written submissions, the respondents have mentioned, inter alia, that they were manufacturing laminated sheets for which they made the reactive mixture for phenol solution: The issue regarding excisability of such solution as well as (in the alternative) that of eligibility for the availing of set off under Notification No. 201/79 both have since been settled in favour of the assessees; And in this regard, apart from Tribunal’s orders in the case of Formica India v. CCE reported in 1990 (47) E.L.T. 585 and CCE v. Hindustan Lever reported in 1990 (47) E.L.T. 646, they would like to draw attention towards the Hon’ble Supreme Court judgment in the case of Moti Laminates reported in 1995 (76) E.L.T. 241.
7. Moreover, in the respondents’ own case, the Tribunal has held that such solution is not marketable and is hence, not goods subject to duty vide their Appeal No. E/839/90-C a copy of which is enclosed.
8. Learned DR stated that it is true that in respect of the same very product, the Tribunal has passed Order No. 336/96-C, dated 29-3-1996 in the respondents’ own case.
9. We have considered the above submissions. We observe that the respondents’ submissions are correct and the Tribunal has held this material to be non-excisable and therefore, non-dutiable relying on the Hon’ble Supreme Court’s judgment in the case of Moti Laminates Pvt. Ltd. v. CCE, Ahmedabad reported in 1995 (76) E.L.T. 241 (S.C.) in their own case.
10. We observe that Collector (Appeals)’ order is correct as Hon’ble Supreme Court itself has held in the case of Moti Laminates (supra) that such materials which were not marketable were not liable to duty. Even otherwise, the Collector’s observations with reference to Notification No. 201/79 were also correct; However, we need not go into that in view of the aforesaid judgment of Hon’ble Supreme Court which has also since been noted and followed by the Tribunal in its Order No. 336/96-C, dated 29-3-1996. Respectfully, following the ratio thereof, the order of the Collector is confirmed and the appeal of the Department is rejected.