JUDGMENT

S.B. Sinha, J.

1. Interpretation of an exemption notification bearing No. 4/2006-CE dated 1.03.2006 is in question in these appeals which arise out of a judgment and order dated 30.04.2008 passed by the Customs, Excise and Service Tax Appellate Tribunal (for short "the Tribunal"), Principal Bench, New Delhi in Custom Appeal Nos. 43-47 of 2008.

2. Respondent is engaged in the business of textile and manufacturing of textile goods, viz., Dystar Indigo VAT 40 per cent SOL/Indigo Powder 90 per cent Wettable. The said imported goods fell under Tariff Heading 32041559. Additional Duty (CVD) was charged on the assessable value of the goods purported to be in terms of Section 3 of the Customs Tariff Act, 1975 (for short "the Act").

Urging that no excise duty was payable on the said goods in view of the notification dated 1.03.2006, the respondent preferred appeals aggrieved thereby. The said contention was upheld. Appellant approached the Tribunal thereagainst. The said appeal, by reason of the impugned judgment, has been dismissed.

3. Mr. Harish Chandra, learned senior counsel appearing on behalf of the appellant, submitted that:

(i) The appellate authority as also the Tribunal committed a serious error in passing the impugned judgment insofar as they failed to take into consideration that an exemption notification should be construed strictly.

(ii) An assessee would be entitled to the benefit of an exemption notification only in the event the conditions precedent therefore are satisfied.

(iii) As the raw material was required to be a product of the same factory, the impugned notification, the learned Counsel argued, was not attracted.

(iv) In any event, the Tribunal having based its decision on a judgment of a Three-Judge Bench of this Court in Thermax Private Ltd. v. Collector of Customs: 1992(61)ELT352(SC) , the correctness whereof having been doubted and referred to the Constitution Bench in Hyderabad Industries Ltd. v. Union of India: 1999(108)ELT321(SC) , the impugned judgment is wholly unsustainable.

4. The learned Counsel appearing for the respondent, however, supported the impugned judgment.

5. We may, however, notice that part of the judgment in Thermax Private Ltd. (supra), in terms whereof the manner in which Chapter X of the Act is to be applied has merely been referred to the Constitution Bench and not the question which is involved herein.

6. Parliament enacted the Act; Section 3(1) whereof provides for levy of additional duty equal to excise duty.

7. Indisputably, if it is found that the notification dated 1.03.2006 is applicable in relation to the import of the goods in question by the respondent herein, the excise duty thereon being `nil', no additional duty would be payable. The said provision reads, thus:

3. Levy of additional duty equal to excise duty.- (1) Any article which is imported in India shall, in addition, be liable to a duty (hereinafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article.

...

Explanation - In this section, the expression 'the excise duty for the time being leviable on a like article if produced or manufactured in India' means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India, or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty.

8. The notification dated 1.03.2006, interpretation whereof falls for our decision, reads, thus:

In exercise of the powers conferred by Sub-section (1) of Section 5A of the Central Excise Act