ORDER
S. Kalyanam, Member (J)
1. Since we propose to dispose of the appeal itself on a short point today, we grant waiver of pre-deposit of duty and penalty pending disposal of the appeal.
E/Appeal No. 35/90:
This is an appeal directed against the order of the Collector of Central Excise, Coimbatore dated 6-11-1989 levying a duty of Rs. 5,73,152.02 and penalty of Rs. 10,000/- under the provisions of Central Excises & Salt Act, 1944 (hereinafter referred to as “the Act”).
2. Shri Jagadeesan, the learned Counsel for the appellant submits that duty has been levied under the impugned order on the manufacture and removal of spare parts of textile machineries and articles of plastic by the appellant for the period 1-4-1986 to 29-2-1988 by invoking the longer period of limitation in terms of the proviso to Section 11A of the Act. The learned Counsel submitted that the appellant has been denied the benefit of Notification No. 175/86 dated 1-3-1986 on the ground that the plastic articles manufactured by the appellant and parts of textile machinery manufactured, if both clubbed together would exceed Rs. 10,00,000/- (Rupees ten lakhs) for the purpose of licensing and, therefore, the appellant would not be entitled to the exemption notification as the appellant has not taken out a Central Excise licence. In this connection, the learned Counsel contended that in terms of Notification No. 175/86 dated 1-3-1986, so far as the appellant is concerned in no case the value of any goods manufactured and cleared by them taken separately exceeded Rs. 15 lakhs and the appellant would, therefore, be eligible for the benefit of the said notification. The learned Counsel contended that this plea, though urged and has been referred to in para 16 of the impugned order, has not been considered by the learned adjudicating authority and, therefore, the issue would require reconsideration in the light of the said notification and on the basis of the materials available on record. The learned Counsel also submitted that in respect of one M/s. Sri Meenakshi Plastic Industries, Singanallur, Coimbatore, in the same Collectorate, the Collector of Central Excise by his order SI. No. 29/89 in C. No. V/84/87/15/33/88-Cx. Adj. dated 17-5-1989 in respect of manufacture of same goods in similar circumstances has given the party the benefit of Notification No. 175/86 and it was, therefore, urged that the appellant should also have been given the relief under the said notification on the same reasoning.
3. The learned Counsel further urged that the learned adjudicating authority in para 28 of the impugned order has referred to the ruling of the South Regional Bench in Order No. 798/1987 (Radhika Enterprises v. Collector of Central Excise, Coimbatore) and has held that in the absence of licence, it was not possible to grant any exemption. The learned Counsel, in this context, submitted that the ratio of the Special Bench in the case of CCE v. Atlas Radio & Electronics Pvt. Ltd. reported in 1989 (39) ELT 123 (Tribunal) and in the case of Structurals & Machineries (Bokaro) Pvt. Ltd. v. CCE, Patna reported in 1984 (17) ELT 127 (Tribunal) would govern the facts of the present case also in favour of the appellant.
4. Heard Shri Vedantham, the learned DR.
5. We have carefully considered the submissions made before us and gone through the records. The short question that would primarily arise for consideration in the present case is whether the appellant would be entitled to the benefit of Notification No. 175/86 cited supra in the facts of the case. The plea of the appellant in regard to the eligibility on the basis of value of clearance of each goods falling under separate tariff heading has been referred to by the learned adjudicating authority in para 16 of the impugned order which reads as under :-
“In so far as the various products manufactured by the assessee was concerned, it was pointed out that the correct classification in respect of various parts manufactured by the assessee would be as per the Annexure submitted during the course of personal hearing. The said Annexure gives details of various parts chapterwise classification, the value of clearance in respect of each category etc. Referring to that Annexure, it was pointed out that in no case, the value of clearance has gone beyond Rs. 15 lakhs and therefore, it was pointed out that the party is eligible for exemption under Notification No. 175/86 dt. 1-3-1986.”
6. We find that the above plea of the appellant has not been considered by the learned adjudicating authority and by his reasoning in para 28 of the impugned order, the learned adjudicating authority has held that the ratio of the ruling of the South Regional Bench in the case of Radhika Enterprises v. CCE, Coimbatore, cited supra, would disentitle the appellant to the benefit of the exemption notification on the short ground that the appellant has not taken out a licence. The Special Bench in the case of Structurals & Machineries (Bokaro) Pvt. Ltd. v. CCE, Patna referred to above, while considering the scope of exemption Notification No. 89/79 has held as under :-
“13. We have carefully considered this part of the arguments of the parties. The concession in Notification No. 89/79-C.E., dated 1-3-1979 is not dependent on taking out a licence. The demand of duty from the appellants is to be examined on the basis of effective rates of duty provided under the notification and on other conditions of notification being fulfilled which are not disputed in the case. Considering the entire facts and circumstances of the case, the notification and the precedents relied on by the parties, the Bench is of the view that it would not be proper to deny the appellants the benefit of Notification No. 89/79-C.E., dated 1-3-1979 on the ground that the appellants had not taken out a licence. The Bench finds accordingly.”
7. We note that the ruling of the Special Bench has been given by a Bench comprising of three learned Members. According to the recent Division Bench ruling of the Delhi High Court [reported in 1990 (45) ELT 521] in the case of Paras Laminates Pvt. Ltd. v. CEGAT, it has been held that the Tribunal being a creature of statute will be governed by the provisions of the Act and if there no provision in the Act governing a particular situation, the well established judicial practice and precedents will have to be followed by the Tribunal. We find that this 3-Member Bench ruling of the Special Bench was not brought to the notice of the South Regional Bench when the Judgment in the case of Radhika Enterprises v. CCE, Coimbatore cited supra was rendered. We, therefore, are of the view in the facts and circumstances of this case and in the interests of justice, the question with reference to the appellant’s eligibility and entitlement to the benefit of Notification No. 175/86, in the light of the rulings cited by the learned Counsel will have to be considered, more particularly when the learned adjudicating authority has not considered the appellant’s plea referred to in para 16 of the impugned order at all. In this view of the matter, without expressing any view on the merits of the issue, we set aside the order appealed against and remit the matter for re-consideration in the light of our observations above.