Per K. Sankararaman: The appellants are manufacturers of various Aluminium Extrusion Products. They had declared Aluminium Ingots and Magnesium as the inputs and Aluminium Tubes and Pipes as the final products in the declaration filed under Rule 57—G of the Central Excise Rules, i944. They cleared Aluminium Irrigation Tubes without payment of duty in terms of Notification No. 180/88—CE dated 13.5.88. A show cause notice dated 12.3.93 was issued to them alleging that before clearing the exempted goods as above during the period September 1992 to February 1993 they had not reversed Modvat credit amounting to Rs.29,59,084.15 v taken on the inputs but had utilised it towards clearance of other dutiable products and had thereby contravened the provisions of Rules 57 A, 57C and 57F of the Central Excise Rules, 1944. The case was adjudicated by the Assistant Collector confirming the demand of duty equal to the Modvat credit in question. The Assistant Collector's order was confirmed by Collector of Central Excise (Appeals), Calcutta. Hence this appeal.

2. The stay petition in this regard was heard by the East Regional Bench of the Tribunal who, after disposing of the same, referred the appeal for being heard by a larger Bench in view of the difference in views between the different Benches on the issue involved. Accordingly the appeal was heard by us when the appellants were represented by Shri Joseph, Kodianthara, learned advocate while Shri Mewa Singh, learned Departmental Representative appeared for the respondent Collector.

3. Learned Counsel submitted that Modvat credit had been correctly taken by them in respect of specified duty paid on their inputs, Aluminium Ingots and Magnesium. They manufacture a number of Aluminium Extrusion products which include pipes for use in the manufacture of Sprinkler equipment for agricultural irrigation purposes. These are exempt from duty under Notification 180/88—CE dated 13.5.88 as amended. Such Aluminium Pipes figure at serial No. 16 of the Table annexed to the said Notification. He invited our attention to the second proviso in the Notification which lays down that in respect of goods mentioned against Sl. nos. 1,5,6,7,10,11,12,14 and 15 of the Table, the exemption shall not apply if credit of the duty paid on the inputs used in their manufacture has been availed under Rule 56A or Rule 57 A of the Central Excise Rules, 1944. He pointed out that SI.No. 16 of the Table which covers the final product in question does not figure in this proviso and contended that the effect of this will be that the requirement of non availment of credit of duty under Rule 56A or Rule 57 A does not apply in respect of their final product in question. Their availing Modvat credit does not affect their entitlement to the benefit of exemption from duty under this Notification. The learned counsel submitted that this exemption notification is not of the type contemplated under Rule 57C which will have the effect of disallowance of Modvat credit. It is a conditional exemption notification. The notification, in terms of the said proviso, implicitly permits availment of exemption and of Modvat credit. The notification is issued under Section 5 A of the Act and is, as if, part of the Act. The Notification will override Rule 57C, if there is a conflict. The learned counsel relied upon the Tribunal decision in Collector of Central Excise Vs. Premiers Tyres —1992 (62) ELT 104 and Supreme Court judgement in Swadeshi Poltex Ltd. Vs. Collector of Central Excise — (1990) 2 Supreme Court Cases 358. He concluded his argument with the plea that the appeal be allowed.

4. Shri Mewa Singh, learned Departmental Representative rebutted the arguments and pleaded that the appeal be dismissed.

5. We have considered the submissions and perused the record. We find that a larger Bench of the Tribunal had held in Kirloskar Oil Engines Ltd. Vs. Collector of Central Excise, Pune—1995(73) ELT 835 that they (Kirloskar) were not entitled to Modva