Per G.A. Brahma Deva, Member (Judicial) :

Arguing on behalf of the Appellants the Ld. Consultant submits that the issue with reference to the eligibility of benefit in terms of Notification No. 96/86 dated 10.2.86 and 67/87 and 1.3.87. These two Notifications prescribing the effective rate of duty at the rate of 12% and 15% respectively. Since Notification 96/86 dated 10.2.86 was in force till 17.3.87 and this notification was more beneficial to the party they filed refund claim in terms of this notification. The contention of the party has been negatived by the authorities below on the ground that subsequent notification prevails. The Collector (Appeals) relied upon the decision of the Hon'ble Supreme Court in the case of Commissioner of Sales Tax U.P. Vs. Agra Belting Works reported in 1987 (32) ELT 251 (SC) wherein it was held that subsequent notification describing rate of sales tax on belting materials without withdrawing of earlier exemption the State Government has authorised to grant both exemption as well as variation in the sale tax. Subsequent notification treatable as combined notification both for withdrawing exemption as well as for providing levy of tax. The Ld. Consultant submits that in that case two Notification were issued under different sections namely section 3 and 4 U.P. Sales Tax Act whereas in the present case two relevant notification were issued under rule 8(1) of the Central Excise rates. Accordingly the ratio laid down by the Hon'ble Apex Court in the case of Agra Belting Works (supra) under Sales Tax Act is not applicable to the facts of this case. On the other hand under Excise Law the Apex Court in the case of under Customs, Excise Act Supreme Court has held that whenever their are two notifications, one is more beneficial is applicable to the assessee. In the case of Auto Tractors Ltd. Vs. CCE, reported in 1989 (39) ELT 494 and subsequently the view taken by the Tribunal was upheld by the S.C. in the case of CCE, Vs. India Petrochemicals Ltd. reported in 1987 (92) ELT 30 (SC). While approving it was held that benefit of the notification which more beneficial to the assessee given by the tribunal was correct. He submitted that in the same partys' case Tribunal has taken similar view as per final order No. E/280/97-D dt. 2.4.97 in Appeal No. E/3838/88-D.

2. The Ld. D.R. reiterated the departmental grounds taken by the authorities below and submits that refund cannot be granted in view of the unjust enrichment.

3. We have heard both sides and carefully considered the matter. We find that the Tribunal has been consistently taking the view that whenever two notifications were in force and one which is more beneficial is applicable and the assesee has got option to avail the benefit of the Notification of any one of them. In the instant case since notification No. 96/86 dt. 10.2.86 was in force to 17.3.87 and for the period 1.3.87 to 16.3.87 the assessee has chosen to avail the benefit of Notification No. 96/86. The authorities below were not right in holding the subsequent notification is applicable to the facts and circumstances of the present case. Since the view taken by the Tribunal has been upheld by the Apex Court we hold that the appellants are entitled to avail the benefit in terms of Notification which ever is beneficial to them. Accordingly the appeals are allowed.