( 1 ) THE question involved in these appeals is whether waste, parings and scrap (WPS) arising in the course of manufacture of polyurethane foam blocks were entitled to the benefit of Exemption Notification No. 53/88 or 54/88 for the period in question. It is the contention of the appellant that wps of polyurethane foam were covered by Notification No. 54/88 and not no. 53/88. The submission is that WPS of flexible polyurethane foam (PUF) had been specifically excluded from Notification No. 53/88 (Serial No. 42) and has been dealt with expressly in Exemption Notification No. 54/88.

( 2 ) THE Tribunal was of the opinion that both the exemption notifications applied to WPS of PUF and that since a greater benefit was conferred on the assessee by Notification No. 53/88, the Revenue was bound to grant such greater benefit to it.

( 3 ) THE appellant has submitted that the Tribunal has erred in holding that the notifications overlapped. Detailed arguments were addressed to us on this basis and there appears to be substance in the submission of the appellant on this point. However, learned counsel appearing on behalf of two of the assessees, namely, Durafoam and U. Foam, has submitted that even on the basis that Notification No. 54/88 applied, the assessee was entitled to the benefit of the exemption to the extent that it provided for payment of nil rate of duty. In view of this argument we do not propose to decide the issue whether Notifications Nos. 53/88 and 54/88 overlapped and, if so, what would be the outcome thereof. Notification No. 53/88, as it stood prior to 1989 read as follows: "notification No. 53/88-CE, dated 1-3-1988 effective rates of duty on flexible and rigid P. U. foam and articles thereof. In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts goods of the description specified in column (3) of the Table hereto annexed, and falling under headings or sub-headings of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as are specified in the corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon which is specified in the said Schedule, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table, subject to the conditions, if any, laid down in the corresponding entry in column (5) of the said Table.-

( 4 ) IN 1989 Notification No. 54/88 was further amended by substituting Sl. No. 2 of the notification and by adding Sl. No. 6. The 1989 amendment reads as follows: "no. 54/88 Central Excises, dated 1-3- in the table annexed to the said 1988 notification, (p. 11)THE aggregate quantity of clearances of such goods outside the factory, from any factory for home consumption, in any month, by or on behalf of one or more manufacturers, at the rate specified in column (4), shall not exceed 10% of the total production of flexible polyurethane foam and articles thereof falling under Headings 39. 09, 39. 20 or 39. 21 of the said schedule during the immediately preceding month. "

( 5 ) ACCORDING to the respondent assessees WPS in question would be covered by Sl. No. 3. It is further submitted that the latter portion of Sl. No. 2 as it originally stood as well as Sl. No. 3 and Sl. No. 6 as introduced in 1989 were identical. The difference was in the rate of duty based on the fulfilment of conditions under Sl. No. 3.

( 6 ) LEARNED counsel appearing for the appellant does not dispute that WPS in question would be covered under Sl. No. 2, as it originally stood, Sl. No. 3 and Sl. No. 6 subsequent to the 1989 amendment. However, it is contended that the condition prescribed in respect of Sl. No. 3 had not been fulfilled by the respondent inasmuch as the flexible PUF out of which WPS had resulted, had not been subjected to any duty and had been exempted from payment of duty by Notification No. 217/86. Reliance has been placed on the decisio