Judgment:
1. This appeal arises from Order-in-Appeal No. 55/95, dated 8-9-1995 passed by Commissioner (Appeals), Hyderabad holding that appellants are not entitled to the benefit of exemption Notification 1/93 in view of their having cleared one of the items Acetylene on payment of duty and hence the claim for exemption on Oxygen was denied. Appellant contends that their own matter was heard by this Bench and by final order Nos.
2048 to 2052/96, dated 11-6-1996 the matter was remanded for de novo consideration in the light of the Tribunal judgment in the case of Faridabad Tools [1993 (63) E.L.T. 759] and that of the Larger Bench decision in the case of Kamani Foods v. CCE, Patna [1995 (75) E.L.T.202]. They contend that the matter is still pending and it has not been re-adjudicated. They want the case to be decided on merits in the light of the written submissions filed.
2. Ld. SDR submits that even otherwise, the matter is required to go back to the original authority as duty has not been computed in the matter.
3. On a careful consideration and perusal of the record, we notice that the appellant's own case had come up for consideration on the same issue of denial of benefit of Notification No. 1/93, dated 1-4-1994.
The Tribunal by Final Order Nos. 2048 to 2052/96, dated 11-6-1996 remanded the matter with the following observation in paras 3 & 4 of the said order which is noted hereinbelow :- [Notwithstanding the exemption contained in paragraph 1 of this notification, a manufacturer shall have an option for not availing of the benefit of the exemption contained in said paragraph and to pay duty of excise at the rate applicable to the specified goods but for the exemption contained in the said paragraph 1, subject to the condition that such manufacturer shall pay duty at the rate applicable but for aforesaid exemption on all subsequent clearances of specified goods made after availing such option, in a financial year in which such date of option falls.] 3. The learned lower authority has placed reliance on this amendment to hold that the appellants could not have availed the benefit of Notification 1 /93 in respect of one of the items and they should have either opted for the benefit of Notification 1/93 for all the items or not at all. The appellants have submitted written submissions and stated that they could simultaneously avail of the facility for payment of duty under Notification 1/93 for one item and pay duty for other items at the tariff rates. They have also cited the decision of the CEGAT, Delhi in the case of CCE, Meerut v. Nova Vision Electronics, reported in 1996 (11) CXLT (Tribunal), CE187. In this judgment the Tribunal has taken note of the view as urged by the appellant as reported in 1993 (63) E.L.T. 759 in the case of Faridabad Tools Pvt. Ltd. v. CCE and upheld by the Hon'ble Supreme Court by dismissal of the departmental appeal, and which decision has also been taken note of the by the Tribunal reported in 1994 (72) E.L.T. 578 in the case of CCE v. Delhi Kanodia Tin & Drum Factory.
The Hon'ble Supreme Court has dismissed the civil appeal No. 7955/95 filed by the department against the order passed by the Tribunal in the case of Faridabad Tools reported in 1993 (63) E.L.T. 759, as seen from the Court Room Highlights appearing in 1996 (82) E.L.T. A149, dated 15-3-1996. Inasmuch as in the case above the statutory appeal filed by the department has been dismissed by the Supreme Court as seen from the decision cited supra, the Tribunal decision can be taken to have been affirmed by the Supreme Court. In view of the above, we hold that the decision of the Larger Bench in the case of Kamani Foods v. CCE, Patna reported in 1995 (75) E.L.T. 202 under which it was held that the appellants could not have availed of the benefit of SSI notification in respect of one specified item and pay duty at the statutory rate for other items, is not required to be followed. The issue therefore, can be taken to have been concluded by dismissal of the departmental appeal as referred to above in favour of the assessee. The prayer of the assessee for dispensation of pre-deposit is allowed.
4. Inasmuch as the matter stands concluded, the appeals themselves are taken up for disposal with the consent of the parties. The decision of the Hon'ble Supreme Court was not available when die learned lower authority had passed the order. The appeal therefore will have to be remanded in the light of the latest decision as cited above. The decision cited above was in the context of Notification 175/86. Reliance on this decision rendered in the context of the said notification will be considered in the light of the specific Notification No. 1/93 as amended which was introduced on 1-4-1993. In the circumstances, the matter will be required to be examined de novo taking into consideration the judgment of the Hon'ble Supreme Court cited supra as also the amendment to this Notification. We in the circumstances, set aside the impugned order and remand the appeals for de novo decision by the original authority. The appeals are thus allowed by remand.
4. On a perusal of the above order, the issue being the same, the matter has to go back to the original authority for de novo consideration in the light of the above observation of the Tribunal. In case if the original authority had already decided the matter, then the appellants shall be given an opportunity of hearing and a detailed order be passed after taking into consideration of their pleas. Thus the appeal is allowed by way of remand.