ORDER
K.L. Rekhi, Member (T)
1. The appellants are aggrieved by the two demands for differential central excise duty served on them. The lower authorities have held that the appellants were not entitled to the benefit of exemption notification No. 119/75-C.E., dated 30-4-1975 in respect of the barley malt prepared by them out of customer’s barley and hence the said barley malt was to be assessed to duty on its full value and not on the job charge or conversion charge only as originally done.
2. Before us, the appellants’ argument was two fold :
(1) Conversion of customer’s barley into barley malt constituted job work within the meaning of the notification [reliance on Anup Engineering case-1978 E.L.T. J 533 (Gujarat) and similar judgments of Calcutta and Madras High Courts relating to different commodities].
(2) In any case, so far as the past period was concerned, they were entitled to the benefit since they had entered into agreement with their customer only after the Assistant Collector had confirmed to them in writing on 19-5-1978 that they were eligible to the exemption under the notification and this constituted promissory estoppel (Reliance on AIR 1979 SC 621-sales-tax case of Motilal Padamdat Sugar Mills).
3. Subsequently, the appellants placed on record a copy of the Delhi High Court judgment dated 11-7-1985 in civil writ No. 36 of 1981- Bar-malt (India) Pvt. Ltd. v. Union of India and Ors.-in which the High Court has held that barley malt was completely exempt from duty under notification No. 55/75-C.E., dated 1-3-1975, both as a food product (S. No. 1 of the notification) and also as a drug intermediate (S. No. 19 of the notification). However, the appellants made it clear that they were not asking for full exemption or for refund of the duty already paid by them on the basis of job charges and that their prayer still was that the extra demands made on them (by denying them the benefit of assessment on job charges under notification No. 119/75-C.E., dated 30-4-1975) should be withdrawn.
4. The learned representative of the department maintained that barley was an agricultural produce and its conversion into barley malt amounted to primary manufacture and not incidental or ancillary processing or job work (reliance on this Tribunal’s Larger Bench order No. 70/85-C dated 25-1-1985 in NOCIL case), that the Assistant Collector, a lower functionary, was not empowered to hold out any promise which could attract the rule of promissory estoppel, that there could be no promise which was not in accordance with law. That for the past period the Appellate Collector had already given substantial relief to the appellants on the ground of time bar and that on the substantive issue as to what constituted a food product we should be guided by the judgments of the Allahabad High Court in the case of mixed ground ‘masalas’ (1982 E.L.T. 309) and the Andhra Pradesh High Court in the case of Coffee-chicory blend (1980 E.L.T, 65). He added that the department had decided to file an appeal before the Supreme Court against the Delhi High Court judgment holding barley malt free from duty. In response to a query from the Bench, the learned representative of the department stated that there was no contrary judgment of any other High Court on barley malt.
5. We have given the matter our earnest consideration. We observe that the Delhi High Court judgment is directly on the product-barley malt- which is in dispute before us. We are also told that there is no contrary judgment of any other High Court on this product. In the circumstances, in keeping with the practice of this Tribunal, we are bound to follow the Delhi High Court judgment. It may be that the present appellants are not asking for full exemption. But in view of the Delhi High Court having declared the product fully free from duty, we are at a loss to understand how the demands for any differential duty can be sustained against the appellants. We feel that in view of this judgment it is no longer necessary for us to determine the issues of job work and promissory estoppel as originally posed before us. Respectfully following the Delhi High Court judgment, we set aside the impugned demands and allow this appeal with consequential relief to the appellants.