K. Prakash Anand, Member (T)

1. The Issue in the present matter relates to the interpretation of Notification No. 80/80-C.E., dated 19-6-1980. The appeal is against the order of the Collector of Central Excise (Appeals) which has upheld the order of the Assistant Collector in which it was held that the total value of clearances of goods for purposes of Notification No. 80/80-C.E. would include the value of goods produced without the aid of power in the other factory of the appellants, and since such value exceeded Rs. 20 lakhs, the limit prescribed in the notification, therefore appellants were not entitled to exemption under the said notification. Appellant's claim that the show cause notice by the department for recovery of refund was time barred, was also rejected.

2. We have heard Shri Satish B. Naik, Excise-in-Charge of the Company and Smt. Dolly Saxena, Senior Departmental Representative.

3. Shri Naik has filed a copy of written submissions on behalf of the appellants. Smt. Dolly Saxena briefly submitted that she reiterated the view taken in the order-in-appeal and has nothing further to add.

4. The main submission of the appellants is that goods which are completely and unconditionally exempted from excise duty ceased to be excisable goods and that their value Is not to be included in the computation of the total value of clearances for determining whether the assessee is entitled to the benefit of Notification No. 80/80-C.E., dated 19-6-1980. It is urged that this is the view taken by the Madhya Pradesh High Court in the case of Tata Export Limited v. Union of India - MANU/MP/0140/1985 : 1985 (22) ELT 732 and Madhav Mills Private Limited v. Collector of Central Excise and Ors. - (1982 E.C.R. 218-D).

5. This issue was gone into by this Tribunal in the case of Techno Chemical Industries v. Collector of Central Excise, Cochin - MANU/CE/0334/1986 : 1987 (31) ELT 541. The view taken by the Madhya Pradesh High Court was also respectfully considered. on the other hand, the Tribunal noted the view of the Delhi High Court in the case of Vishal Andhra Industries v. Union of India - 1983 (ELT) 2265 which was in favour of Revenue. It was observed that the Karnataka High Court also took a view favourable to Revenue on this Issue in the case of Karnataka Cement Pipe Factory Industrial Estate v. Superintendent of Central Excise and Anr. -MANU/KA/0063/1985 : 1986 (23) ELT 313 (Karnataka). This decision of the Karnataka High Court also noted with approval the view, favouring Revenue, of Allahabad, Andhra Pradesh and Madras High Courts. The Tribunal, therefore held that even where certain excisable goods are exempted from excise duty by virtue of notification issued by the Central Government, they do not cease to be excisable goods. In the light of the Tribunal decision in the case of Techno Chemical Industries, with which we wholly concur the claim of the appellants to the benefit of Notification No. 80/80-CE is rejected.

6. In their appeal, two other points have been made by the appellants. Although these are not included in the written submissions filed at the time of the hearing of the appeal, in fairness to the appellants, we would like to deal with both these points. Firstly, it is submitted that the Assistant Collector of Central Excise sanctioning the refund had no jurisdiction to Issue the notice that the refund was erroneously made and to requlre-the party to show cause why the amount refunded should not be recovered. In support of this submission appellants have cited the decision of the Madras High Court in the case of Madras Rubber Factory Ltd. v. Assistant Collector of Central Excise, Madras - 1981 (ELT) 565. The appeal before us especially makes the point that although appellants had cited the Madras High Court decision in the reply to show cause notice as well as in the appeal to the Collector (Appeals), neither the Assistant Collector nor the Collector (Appeals) have dealt with this point. on this ground alone, it is s