D.C. Mandal Member (T)

1. Appellants manufacture excisable goods specified in the Notification No. 80/80-C.E., dated 19-6-1980. They also manufacture Thinner falling under Item 68 of the Central Excise Tariff, which was exempted from the whole of excise duty under Notification No. 179/77-C.E. The lower authorities have denied the benefit of exemption under Notification No. 80/80-C.E. in respect of the goods specified in the Notification. In the impugned order, the Collector (Appeals) has stated that the Notification No. 80/80-C.E. provides for duty free clearance of specified goods upto the value of Rs. 5 lacs and thereafter on concession upto 25%, if the total clearances of the specified goods in the preceding financial year did not exceed Rs. 15 lakhs and total clearances of all excisable goods during the previous financial year did not exceed Rs. 20 lakhs. He has observed that Explanation V to the Notification laid down the method of computation of aggregate clearance value and according to this Explanation, clearances of any specified goods which are totally exempt by any other notification shall not be taken in for computing the value of aggregate clearances. According to the said Explanation, exclusion from the computation is permissible only for such exempted excisable goods which are specified in the Schedule to the Notification No. 80/80-C.E. and he has held that as the Thinner is not specified in the Schedule to the Notification, the value of its clearances should not be excluded from the computation of lot al clearances of excisable goods in the previous financial year. The value of the excisable goods in the previous financial year exceeded Rs. 20 lakhs including the value of clearances of Thinner. The Collector (Appeals) has, accordingly, held that the benefit of notification was not available to the appellants. Hence, this appeal before us.

2. We have heard Shri J.S. Aggarwal, Consultant for the appellants and Shri C. V. Durghayya, J.D.R. for the respondent. Shri Aggarwal has argued that Thinner being fully exempted from duty under Notification No. 179/77-C.E., dated 18-6-1977, is not "excisable goods" and hence, the value of its clearances should not be included in the computation of aggregate value of clearances of all excisable goods during the previous financial year. In support of his argument, Shri Aggarwal has relied on the decisions reported in (i) MANU/UP/0180/1977 : 1988 (33) E.L.T. 58 (All) , (ii) MANU/MP/0140/1985 : 1985 (22) E.L.T. 732 (M.P.), (iii) 1978 (2) E.L.T. (J 525) (Delhi), (iv) MANU/BH/0109/1981 : 1984 (17) E.L.T. 310 (Patna) and (v) MANU/GJ/0090/1980 : 1980 (6) E.L.T. 538 (Gujarat). He has also argued that the decisions of High Courts are binding on the Tribunal. He has cited the decisions of Supreme Court reported in MANU/SC/0179/1962 : 1983 (13) E.L.T. 1342 (S.C.) and Tribunal's decision reported in MANU/CE/0079/1988 : 1988 (35) E.L.T. 398 (CEGAT) in support of binding effect of High Court judgment.

3. Shri Durghayya has argued that Thinner falling under Tariff Item 68, but exempted by Notification is "excisable goods" and hence, the value thereof has been correctly included in the computation of clearances of all excisable goods during the previous financial year. In support of his argument, he has cited the decision of this Tribunal reported in MANU/CE/0334/1986 : 1987 (31) E.L.T. 541 (Tribunal) in the case of Techno Chemical Industries v. Collector of Central Excise, Cochin, decided on 30-10-1986. He has stated (hat this judgment of the Tribunal considered the various judgments of High Courts, and followed majority of those judgments. He has, therefore, submitted that this decision of the Tribunal should be followed and the appeal filed by the assessee should be dismissed.

4. We have considered the records of the case and the arguments of both sides. We observe that Allahabad, Madhya Pradesh and Patna High Courts, in their judgments reported in MANU/UP/0180/1977 : 1988 (33) E.L.T. 58