Per Shri V.P. Gulati :

These two appeals involve a common issue and are therefore, taken up together for disposal. The issue in the appeals relates to the benefit of Notification 54/88 which benefit has been denied to the appellants as also in the alternative, the benefit of Notification 53/88.

2. The learned Counsel for the appellants has pleaded that if the benefit of Notification 54/88 is allowed, consideration of the benefit of Notification 53/88 would not be required to be done.

He has referred us to the Notification 54/88 Sl. 3 which as originally worded was as under :

and subsequently by amending the Notification by Notification No. 37/89 dated 7.3.89 the following was substituted against Serial No. 6:

The lower appellate authority in both the cases has held that the appellants will be entitled to benefit of the concession only in respect of waste and scrap of the material in question which were cleared outside the factory to the extent of 10% of the ceiling as provided for under the Notification without taking into reckoning the waste and scrap which were captively consumed. The appellants' plea is that so far as the waste and scrap which were cleared for captive consumption the condition of 10% as above, will not apply to the same and in any case by reason of the wording as set out under Sl.No. 6 of the amended Notification the benefit would be available as the condition in question is applicable only in case where the goods are cleared outside the factory and no condition as such has been prescribed for the purpose of the benefit of assessment in respect of waste and scrap captively consumed and these would be entitled to the full benefit envisaged in the notification.

3. The learned DR has pleaded that specific condition has been prescribed and it should be taken that the benefit is applicable only to the extent as envisaged in the Notification.

4. We have considered the pleas made by both the sides. We observe that under the Notification, in terms of Sl.No. 6, the benefit is available in respect of the goods falling under heading No. 39.15 answering to the description waste paring and scrap of flexible polyurethane foam and the rate prescribed is 40%. Thus the goods to which exemption would be available have been prescribed under Sl.No. 3 of the table to the notification. Under column 5, the condition for the benefit of Notification has been set out. This condition as could be seen from the wording under column 5, is applicable only in respect of the goods which are described under column No. 3 which are cleared outside the factory. The question that arises for consideration is whether this condition neutralises the benefit of exemption in respect of waste which is otherwise cleared which in the present case is by way of captive consumption inside the factory. The legislature in its wisdom has chosen to prescribe condition of the limit of exemption available only in respect of goods which came to be cleared outside the factory. There is nothing in the wording of the condition to say that there would b