JUDGMENT

SEN, J.—M/s.Rajasthan Spinning and Weaving Mills Limited, Bhilwara, has come up in appeal against an order passed by the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi. The case in the Tribunal was heard by a Bench comprising of the Senior Vice-President and the Judicial Member. There was difference of opinion between the two members on the following question:-

Whether the blended yarn in which polypropylene fibre predominates was or was not entitled to benefit under Central Excise Notification No. 322/77-CE dated 1-2-1977?

2. The matter was referred to the President of the Tribunal who agreed with the view expressed by the Judicial Member that the term polypropylene spun yarn used in the Notification No.332/77/CE dated 1-12-1977 means yarn spun out of polypropylene fibres and will not include blended yarn manufactured by the appellant-Company comprising of 52% propylene and 48% viscose.

3. The appellant has contended that the majority view of the Tribunal is erroneous having regard to scope of the Notification and also the tariff description of goods in Item 18E of the First Schedule to the Central Excises and Salt Act, 1994.

4. Before examining this question, the facts of the case may be noted in brief. Tariff Item No.18 at the material point of time stood as under :-

"18. I. Man-made fibres, other than mineral fibres :

(i) Non-cellulosic

(ii) Cellulosic

II. Man-made filament yarns :

(i) Non-cellulosic -

(a) other than textured

(b) textured

Explanation.- "Textured yarn" means yarn that has been processed to introduce crimps, coils, loops or curls along the length of the filaments and shall include bulked yarn and stretch yarn.

(ii) Cellulosic

(iii) Metallized.

III. Cellulosic spun yarn :

Yarn in which man-made fibre of cellulosic origin predominates in weight and, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power -

(i) not containing or containing not more than one-sixth by weight of non-cellulosic fibre calculated on the total fibre content,

(ii) containing more than one-sixth by weight of non-cellulosic fibre calculated on the total fibre content.

Explanation I.- "Count" means the size of grey yarn (excluding any sizing material) expressed in English Court.

Explanation II.- For multiple fold yarn, "Count" means the count of the basic single yarn.

Explanation III.- Where two or more of the following fibres, that is to say,

(a) man-made fibre of cellulosic origin;

(b) cotton;

(c) wool or acrylic fibre, or both;

(d) silk (including silk noil;

(e) jute (including Bimlipatam jute or mesta fibre);

(f) man-made fibre of non-cellulosic origin, other than acrylic filer;

(g) flax;

(h) ramie;

in any yarn are equal in weight, then such one of those fibres, the predominance of which would render such yarn fall under that sub-item or Item (hereafter in this Explanation referred to as the applicable sub-item or Item), among the sub-items and Items Nos. 18.III, 18A, 18B, 18C, 18D, 18E, 18F. I and 18F.II, which read, with the relevant notification, if any, for the time being in force issued under the Central Excise Rules, 1944, involves the highest amount of duty, shall be deemed to the predominant in such yarn and accordingly such yarn shall be deemed to fall under the applicable sub-item or Item, as the case may be,

IV. Non-cellulosic Wastes, all sorts.

... ... ... ...

18E. Non-cellulosic spun yarn.-

Spun (discontinuous) yarn which man-made fibres of non-cellulosic origin, other than acrylic fibre, predominate in weight and, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power.

Explanation.- Explanation III under sub-item III of Item No. 18 shall, so far as may be, apply in relation to this Item as it applies in relation to that Item."

5. During the year 1978-79, the appellant-Company manufactured non-cellulosic spun yarn of the following composition :-

52% polypropylene fibre

48% Viscose fibre

Since non-cellulosic fibre predominated in weig