Per Shri G.N. Srinivasan: These two appeals Nos. E (SB)-503/86-Cal and E-3465/88D have been filed by the appellant company, M/s. I.T.C. Ltd. against (a) the Order No. C.No. V/4/2/XAP/CAL-I/85 in Order-in-Appeal No. 312/Cal-I/85 dated 29th October, 1985 and (b) C.No. V/4/2/253/XAP/Cal-I/86 in Order-in-Appeal No. 248/Cal-I/87 dated 30.3.87, respectively.

2. We shall deal with the captioned two appeals seriatim in this Judgement.

3. Appeal No. E(SB)503/86-Cal: In this appeal the facts are that on 25.3.85 the appellant effected clearance of Cigarettes falling under Item 4.11 (2) of the First Schedule to the Central Excises and Salt Act, 1944 on payment of duty in accordance with Notification No. 211/83 dated 4.8.83. On the same day i.e. 25.3.1985, two Notifications Nos. 100/85 and 105/85 were issued by the Government of India imposing a Special Excise Duty for the first time on the said goods and simultaneously enhancing the rate of Basic and Additional Excise Duties. On the same day i.e. 25.3.85, the Government of India vide Notification No. 103/85 rescinded the Notification No. 211/83 dated 4.8.83. Consequently, the assessee was asked to pay the higher duty on the said goods cleared on 25.3.85 as a short levy at Rs. 2,04,240.00 (Basic Rs. 66,592.44, Additional Rs. 9,597.18 and Special Rs. 1,28,050.38) by the original authority.

4. The appellant resisted the demand made by the lower authority and filed an appeal before lower appellate authority. The appellant argued before the lower appellate authority that the Notifications issued on 25.3.85 were made available to the public only on 15.4.85 in as much as the Gazette Copy was actually sold to the public only on that date. The appellant also cited certain decisions of the Honourable Supreme Court and High Courts. It was argued by the appellant before the lower appellate authority that there was a radio and TV announcement on 25.3.85 in a cryptic way that there was increase in the levy of Excise Duty on Cigarettes without mentioning the quantum thereof. The lower appellate authority dismissed the appeal confirming the order of the original authority. Hence this appeal before the Tribunal.

5. Shri R.N. Das, learned Senior Counsel with Ms. Urmita Dutta (Sen) appeared for the appellant and argued that the Government did not announce the exact increase of the quantum of increase in the Excise Duty. In that view of the matter, how could an assessee come to know of the quantum? Moreover, they could get the Gazette Copy only on 15.4.1985. Therefore, they could not collect the burden of increase of duty levied by the Government of India from the consumers. The bonafides of the assessee were shown by stopping all such clearances of Cigarettes after 25.3.85 at 5 P.M.

6. Our attention was drawn by the learned Sr. Counsel to the effect that in the assessee's case before the Western Bench of the Tribunal, Bombay reported in 1995 (75) ELT-922 in respect of the same Notification, Ld. Member (Technical) Shri R. Jayaraman differed from Ld. Member (Judicial), Shri P.K. Desai and the Ld. Third Member, Shri Gowri Shankar gave a Judgement on 8.4.96 agreeing with the learned Member (Technical) thereby dismissing the appeal of the assessee. Shri Das strenuously argued that the learned Third Member Judgement is no judgement at all in as much as no reasons have been given. He has specifically attacked the observations of the learned Third Member made in paragraph 26 which reads as follows :-

"This being the mode prescribed by the statute, publication must be considered to have been made on the dates of these Gazettes. The fact that the notifications were made available to the public at a later date would not be relevant."

7. Learned Sr. Counsel also submits that in so far as the Judgement of the Hon'ble Supreme Court in Pankaj Jain Agencies' case reported in 1994 (72) ELT-805 (SC) is concerned, the facts in that case were entirely different from the facts in the instant case. It was specifically pointed out