IMPORTANT POINT
When two views are possible, one favourable to the assessee in matters of taxation has to be preferred.

JUDGMENT

K. Venkataswami, J.-The appellant as well as the question of law is common in all these appeals. For that reason, the Customs, Excise and Gold (Control) Appellate Tribunal. New Delhi, (hereinafter referred to as the Tribunal) has disposed of the appeals by common order. Hence, these appeals are disposed of by this common judgment.

2. Brief facts leading to the filing of these appeals are the following :

The appellant-Corporation imported six consignments of goods (Pre mix of vitamin Ad-3 Mix (feed grade) at Bombay and seven consignments of similar goods at Calcutta. These consignments were assessed to duty under the heading 29:01/45(17) of the Customs Tariff Act, 1975 read with Item 68 of Central Excise Tariff Act. The Corporation paid the duty. Latter on it claimed refund of the duty paid as countervailing duty contending inter alia that the goods imported were classifiable under item 23:01/07 as Animal Feed and as per notification 234/82-CE dated 1.11.82, those goods were exempted from levy of duty. Accordingly, applications were filed for refund of the countervailing duty/additional duty paid on such imports. The concerned Assistant Collector (Refunds) rejected the claim of the appellant holding that the goods imported were assessable to duty under the heading 29:01/45(17) of the then prevailing First Schedule to the Customs Tariff Act read with Item 68 of the Central Excise Tariff and, therefore, the exemption notification dated 1.11.82 was of no avail to the corporation.

3. Aggrieved by the rejection of refund applications the appellant preferred separate appeals one set before Collector of Customs (Appeals), Bombay, and another set before Collector of Customs (Appeals), Calcutta. The appellate authority at Bombay accepted the claim of the appellant and granted the relief holding the goods imported were in the nature of Animal Feed Additives and as such fall under the heading 23:01.07. However, the appellate authority at Calcutta rejected the claim of the appellant and dismissed the appeal accepting the view of Assistant Collector (Refunds).

4. Against the order of the appellate authority at Calcutta the appellant preferred an appeal before the Tribunal and the Revenue preferred appeals before the Tribunal against the orders of the appellate authority at Bombay.

5. The Tribunal while unanimously holding that the goods imported fell under heading 29.01/45 (17) of the Customs Tariff Act differed on the question of exemption claimed by the appellant. The minority view was that the appellant was entitled to the benefit of exemption claimed by the appellant, while the majority held otherwise.

6. Aggrieved by the common order of the Tribunal, these appeals are preferred. Mr. Ramesh Singh, learned counsel appearing for the appellant-corporation, supporting the minority view of the Tribunal invited our attention to a judgment of the Bombay High Court in Glindia Ltd. v. Union of India1, wherein an identical question arose for consideration and the learned Single Judge took a view favourable to the assessee. In other words, the learned Judge held that animal feed supplements would fall under the purview of Exemption Notification No. 55/75-C.E. similar to the one under consideration.

7. The learned Additional Solicitor General, Mr. K.N. Bhat, on the other hand supporting the majority view of the Tribunal, submitted that a similar view taken by the Tribunal was challenged in appeal in this Court which was dismissed in limine at the admission stage. He further submitted that the view taken by the majority was the correct one.

8. In order to appreciate the rival submission, it is necessary to set out the relevant Tariff Items as well as the relevant portion of the Exemption Notification. They are as follows :

23.01/0 Residues and waste of food industries (for example, inedible meat or fish flour of meal), milling residues, waste from sugar, brewing and distilling and starch industries; oil-cake and other residues from