ORDER
G. Sankaran, Senior Vice-president
1. these three appeals arise out of a common Order-in-Appeal No. M.Cus 1023 to 1026/86, dated 30-4-1986 passed by the Collector of Customs (Appeals) Madras.
2. We have heard Shri T.V. Krishnamurthy, Consultant, for the appellants and Shri S. Chakraborty, DR, for the respondent Collector and have perused the record.
3. Two issues have been urged before us for determination. The first is whether the goods imported, namely, ‘Acrylic Plastic Offouts’ in the case of Nako Plast and ‘Acrypoly’ a brand of acrylic sheets, were eligible for the benefit of exemption from additional duty of customs by virtue of Notification No. 38/73-CE, dated 1-3-1973 issued by the Central Government under Rule 8(1) of the Central Excise Rules, 1944. The second issue (which is urged as an alternative to the first issue) is whether the benefit of Central Excise Notification No. 71/71, dated 29-5-1971 would be available in the matter of levy of additional duty of customs in respect of these goods.
4. The impugned order does not consider and record a finding on the first issue though it was also urged before the Collector (Appeals). It is Shri Chakraborty’s contention that in the circumstance the matter should be remanded to the Collector (Appeals) for consideration and for recording a finding thereon. However, in view of what follows in this order, we do not consider it necessary to remand the matter to the Collector (Appeals).
5. Shri Krishnamurthy has drawn our attention to the judgment of the Madras High Court in the case of Saigal Industries v. Central Board of Excise and Customs and Anr. 1980 E.L.T. 547 (Mad.). The question which fell for consideration in that case was whether imported acrylic sheets would be eligible for exemption from the levy of additional duty of customs in terms of Central Excise Notificatian No. 38/73. In other words, the issue was exactly the same as the first issue which has been posed for our consideration. The High Court answered the question in the affirmative.
6. Notification No. 38/73, dated 1-3-1973 as amended from time to time exempts, inter alia, acrylic sheets falling under Item 15A of the First Schedule to the Central Excises and Salt Act, 1944, from the whole, of the duty of excise leviable thereon subject to the condition set out in the notification. The condition reads as follows:
“If produced out of any of the following materials or a combination thereof, namely :-
(i) artificial resin’s of plastic materials in any form falling under Sub-item (1) of this Tariff Item on which the appropriate duty of excise or the additional duty under Section 2A of the Indian Tariff Act; 1934 (32 of 1934), as the case may be, has already been paid; and/or
(ii) scrap of plastics; and/or
(iii) methyl methacrylate monomer.”
Of these, (i) and (ii) are: not relevant for our present purpose. The contention for the appellants is that the acrylic sheets imported were produced out of methacryl methacrylate monomer. In support of this contention, a certificate dated 17-11-1979 from the turers to the effect that Acrylic Plastic Offcuts shipped to M/s. Nako Plast per S.S. ‘VICTORY GLEAM’ were odd sizes of Acrylic Plastic Sheet manufectured directly from Methyl Methacrylate Monomer, has been relied upon. In the case of G.K. Medical Stores, a similar certificate in respect of Acrylic Plastic Sheets shipped per S.S. Vishwa Kalyan’ has been produced. Extracts from the manufacturers’ literature (in the case of G.K. Medical Stores) have also been produced. These extracts reveal that ‘Acrypoly’ is the registered trade name for acrylic sheeting manufactured by ChisMei Industrial Co. Ltd. It further states that these sheets are the product of Methyl Methaerylate casting sheet. The Department’s contention is that the condition that the goods must be made of Methyl Methacrylate Monomer is verifiable only in respect of goods produced in India. It is incapable, of verification in the case of imported goods. Hence, the Central Excise notification which is a conditional one has no application to imported goods. This was exactly the issue before it he; Madras High Court. The High Court, after discussing the matter in detail, came to the conclusion that so long as the importer had adduced evidence to show that the goods were made of Methyl Methaeiylate Monomer and the Department had not countered this evidence, the benefit of the Central Excise notified tion must be extended to the imported goods by a corresponding exemption from the levy of additional duty of customs.
7. Shri Chakraborty has relied on the Bombay High Court judgment in the case of Ashok Traders v. Union of India and Anr. 1987 (32) E.L.T. 262 (Bom.) in support of his contention that conditional Central Excise notifications have no application to imported goods. It is seen that the Bombay High- Court was construing Central Excise Notification No. 302/79, dated.4-12-1979. This notification, exempted specified artificial or synthetic resins and plastic materials manufactured from raw naphtha or any chemical derived therefrom, on which the appropriate amount of duty of excise had already been paid, from so much of the duty of excjse leviable thereon as was in excess of the duty of excise specified in the notification. It was evidently because of this condition that the High Court observed that it was impossible to imagine a case where in respect of raw naphtha used for manufacture, of high density polythelene in a foreign country excise duty payable under Indian law could have been levied and paid. As such, the condition of payment of excise duty on raw naphtha could never be satisfied in the case, of imported high deffcity polythenene. Therefore, the advantage of notificaition 302/79 was not available to the petitioner. In the present instance, the only condition is that the acrylic sheets should have been made of Methyl Methacrylate Monomer. The appellants have adduced evidence which shows that this condition has been complied with. The Department has not rebutted this evidence. The issue before the Madras High Court was the same and the High Court had found in favour of the petitioner.
8. In the circumstances, we respectfully follow the Madras High Court judgment and hold that the goods in these three appeals were eligible for exemption from additional duty of customs by virtue of Central Excise Notification No. 38/73, dated 1-3-1973, as amended. In this view of the matter, it is not necessary to consider the second issue urged before us. , ,,
9. In the result, we set aside the impugned order and allow the appeals with consequential relief to the appellants.
; 10.’ Before parting with these matters, we would like to briefly touch upon certain aspects. The Assistant Collector in his order No. S25/5548/80 AP, dated 8-12-1980 has, with reference to the claim under Notification 38/73, recorded:
”As such claim for reassessment under the above cited notification may be rejected as inadmissible.
This extract roads like a recommendation made to the Assistant Collector rather than his own considered finding. It makes strange reading. Again he records:
“As regards the Madras High Court judgment referred to by the claimants, it is learnt from Legal Section file C1/177/79 Legal that the Department has instructed the standing counsel to file an appeal against the decision.”
This extract reveals two things firstly, the Assistant Collector, though he is located in the jurisdiction of the Madras High Court, does not consider himself bound by the judgment of that Court. It is not because the Division Bench of that Court or the Supreme Court had stayed the operation of the learned Single Judge’s judgment, but because the Assistant Collector learnt from the Legal Section that the Department had instructed the Standing Counsel to file an appeal against the decision. Secondly, this approach shows lack of judicial discipline which has been frowned upon in no uncertain terms by the Supreme Court in its judgment in the case of East India Commercial Co. Ltd. v. Collector of Customs AIR 1962 SC 1883. This is but one of the many instances noticed of the lower authorities rendering decisions contrary to the ratio of the decisions rendered by higher quasi-judicial authorities. This position requires to be brought to the notice of the Central Board of Excise and Customs for such action as it may deem fit. A copy of this order shall be forwarded to the Chairman, C.B.E.C.