ORDER
S. Kalyanam, Member (J)
1. We restore the stay petition for the reasons stated in the petition for restoration. We grant waiver of pre-deposit of duty inasmuch as we propose to dispose of the appeal itself today on a short point of law.
2. Shri K.P. Jagadeesan, Ld. Counsel for the appellant at the outset submitted that the short issue that arises for determination in the appeal is with reference to the appellant’s eligibility for the benefit of Notification No. 175/86, dated 1-3-1986. The Adjudicating authority under the impugned order dated 24-5-1991 has denied the appellant the benefit of the said notification negativing the appellant’s plea that if the appellant was entitled and had been enjoying the benefit of small scale exemption under Notification No. 77/85 as in the present case, he would become entitled to the benefit of the Notification No. 175/86 under clause 4(b) of the said notification as contended, and the reasoning of the adjudicating authority was assailed as plainly erroneous. The Ld. counsel submitted that if a manufacturer has been availing the benefit of small scale exemption notification in the previous years as envisaged in clause 4(b) of the Notification No. 175/86, he would become eligible to the benefit thereunder for the subsequent year irrespective of the fact whether the unit had been registered with the Director of Industries as a small scale unit or not. The learned counsel further submitted that this issue has been settled in favour of the assessee in a number of rulings of the Tribunal and be also referred to the ruling of this Bench in the case of Sh. C.K. Suresh & Co. v. Collector of Central Excise, reported in 1990 (49) E.L.T. 371 (Tribunal)
. The Ld. counsel further produced an order passed by the same adjudicating authority on 23-1-1992 dealing with an identical situation though for a different party and taking exactly a contrary view and pressed into service the ratio in the later order to his advantage.
3. Heard Shri J.M. Jayaseelan, Ld. D.R.
4. We have given our anxious consideration to the issue argued before us with reference to the appellant’s eligibility to the benefit of the notification in terms of clause 4(b) thereof on the ground that the appellant had been enjoying the benefit of the small scale exemption Notification viz. 77/85. On going through the impugned order we find that when the ruling of this Bench was brought to the notice of the learned adjudicating authority he would appear to have summarily brushed aside it as “far fetched” and “irrelevant”. He, has not given his views as to how the ratio of the ruling of the Tribunal is not applicable to the facts of the present case and distinguishable either on facts or in law. Be that as it may, we cannot fail to take note of the fact that the very same adjudicating authority in an identical situation for a different party at a later point of time has accepted the present contention of the appellant and given relief to the party in that case. Therefore, in the above circumstances inasmuch the authorities in the light of the materials on record has not considered the question as to whether the appellant had been enjoying the benefit of the small scale exemption in the previous year and would be covered by the ambit of clause 4(b) of the Notification No. 175/86 dated 1-3-1986, we set aside the impugned order and remand the matter to the adjudicating authority for consideration of the issue in accordance with law after affording the appellant a reasonable opportunity of being heard in the matter.
V.P. Gulati, Member (T)
5. I observe that the learned lower authority has denied the benefit of exemption Notification No. 175/86 to the appellants for the reason that their clearances during the preceding financial year exceeded Rs. 7.5 lakhs and, therefore, in terms of proviso (a) of para 4 of the notification the appellants would not be entitled to the benefit of the notification. The learned advocate pleads admittedly the appellants were not registered as a small scale unit at the relevant time; but the learned lower authority has not considered their claim with reference to proviso (b) of para 4 of the notification. We also find that the learned lower authority has observed that the benefit under proviso (b) of para 4 of the notification if given, the proviso (a) under para will become redundant. We would like to observe in this context that the findings of the learned lower authority is contrary to the decision of this Tribunal on the scope of the interpretation of the proviso with reference to para 4(b) of the notification. The learned lower authority in his order has chosen to ignore this decision by his cryptic observation that the applicability of the same is ‘far fetched’ and ‘irrelevant’. We fail to understand that when the decision of a higher forum was cited and came to be brought to the notice, why the authority should not take a judicial note of that decision and give a reasoned finding as to how the assessee is not entitled to the benefit of the notification in the particular facts of the case distinguishing the ratio of the decision cited. To merely brush aside this plea made not only tantamounts disrespect to higher forum whose decision has been cited but also amounts to ignoring of the points made by the appellant and to that extent the decision rendered without consideration of the earlier decision will have to be construed as not a proper decision. We observe that a plain reading of the proviso under para 4 of the notification would show that para (a) and para (b) are independent. After proviso (a), there is a word “or” and then proviso (b) proceeds to spell out the cases where the benefit of notifications would be available. In this proviso (b) it is clearly stated that where a manufacturer has been manufacturing specified goods in the factory and has been availing of the exemption under the various notifications specified therein during the preceding financial year the requirements of the production of SSI certificate would stand dispensed with. In the present case since a plea was made that the appellants were availing of the exemption under Notification No. 77/85 we would like to observe that the learned lower authority, in spite of a claim having been made in this regard, has not given a factual finding on fact as to whether the appellants were in fact availing of this exemption in the previous years. We observe that the judicial process of adjudication before administrative authority can be meaningful only if all the norms of judicial propriety are observed and first among the norms in dealing with all the pleas in depth as otherwise the whole exercise will become infructuous and no finality can be reached at the appellate stage. In the present case we find that so far as the facts of availing of the exemption in the previous years is concerned the learned lower authority has not given any finding and if this is found to be correct the appellants would be eligible for the benefit of the exemption notification. We, therefore, have to remand the matter for the limited purpose for the authorities to verify this fact and to pass consequential orders in the light of the observations above.