S. Kalyanam, Member (J)

1. This appeal is filed by the Collector of Central Excise, Guntur and is directed against the order of the Collector of Central Excise (Appeals), Madras dated 31-01-1989 holding that the recovery proceedings of the Department in respect of erroneous credit taken by the respondent during December 1986 are barred by limitation under Section 11A of the Central Excises and Salt Act, 1944 inasmuch as the show cause notice in regard to the same was served on the respondent only on 6-1-1988.

2. Shri K. Narasimhan, the Learned Counsel for the respondent at the outset submitted that the lower appellate authority has not gone into the merits of the issue namely whether Titanium Anodes, being a consumable item used in or in relation to the manufacture of Caustic soda/Caustic potash in the electrolysis process, should be treated as input within the meaning of Notification No. 177/86 dated 1-3-1986 and consequently whether the respondent would be entitled to the relief of the same. The learned Counsel urged that this issue has been decided by a Bench ruling of this Tribunal in E/A. No. 183/89-MAS in the case of Travancore Cochin Chemicals Ltd. v. Collector of Central Excise, Cochin, in Order No. 302/90 dated 04-04-1990. The Learned Counsel further urged that the same lower appellate authority in another appeal disposed of by him in order dated 6-11-1989 of the same respondent has found on merits that Modvat credit would be available in respect of the input in question.

3. Shri P.B. Vedantham, the Learned D.R. appearing for the appellant submitted that the lower appellate authority has not gone on the merits of the issue but decided only on the question of bar of limitation.

4. We have carefully considered the submissions made before us and gone through the records of the ease. The short question that arises for determination in the present appeal is one whether the input in question namely, Titanium Anodes should be construed to be an input and entitled to Modvat credit under the Modvat Rules and whether the finding of the lower appellate authority that the proceedings initiated by the Department are barred on grounds of limitation under Section 11A of the Central Excises and Salt Act, 1944. We would like to note at the outset that the lower appellate authority has not decided the issue on merits and in such circumstances though normally we would be inclined to remit the matter for reconsideration, in view of the fact that the issue has been conclusively decided by a Bench of this Tribunal in M/s. Travancore Cochin Chemicals case under Order No. 302/90 dated 4-4-1990 of the Bench (cited supra) and also having regard to the fact that the very same lower appellate authority has followed the ratio of the West Regional Bench of CEGAT in the case of Gujarat Alkalies Chemicals Ltd. v. Collector of C. Ex., reported in MANU/CM/0039/1989 : 1989 (41) ELT 424 (Tribunal) held in favour of the very same respondent in respect of an identical input in question, we do not think a remand is called for and the, matter may be disposed of on merits as well. The South Regional Bench of the Tribunal in the case of Travancore Cochin Chemicals at the relevant portion with reference to the eligibility of Modvat credit in respect of Titanium Anodes has held as under :-

"4. We observe that in view of the decision of this Bench in the case of Aluminium sheets, and that of the W.R.B. in the case of Titanium Metal Anodes and also the decision of the Special Bench of the Tribunal in the context of Notification 201/79, the appellants' appeal will have to be allowed. It is observed that the Hon'ble Supreme Court in a recent judgment in the case of CCE v. Eastern Paper Industries, MANU/SC/0107/1989 : 1989 (43) ELT 201 (SC) - has held as under :-

"...Where any particular process, this Court further emphasised, is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be comme