Judgment:
1. In this ROM application, the applicants have prayed for rectification of certain mistakes in the Tribunal's Order No. 740/88-C dated 16-9-1988. In paragraph-1 of the ROM application the applicants have stated that during the hearing of the appeal on 13-9-1988, Shri N.C. Chakraborty, authorised representative argued for the appellants whereas due to some communication gap, it appears, the name of Shri K.M. Lakhotia has been indicated instead of Shri N.C. Chakraborty. This point has also been reiterated by Shri N.C. Chakraborty while arguing on the ROM application before us. In the relevant column "present for the appellant" of the order sheet dated 13-9-1988 which was placed before the Bench hearing the appeal, the name of "Shri K.M. Lakhotia, consultant" was shown by the Court Master. In the circumstances, the name of Shri K.M. Lakhotia appeared in the Tribunal's Order instead of the name of Shri N.C. Chakraborty. This is a mistake apparent on record and is required to be rectified by substituting the name of Shri N.C.Chakraborty in place of Shri K.M. Lakhotia, wherever the latter occurs in the impugned order.
2. In paragraph 2 (a) of the ROM application the applicants have stated that during the hearing on 13-9-1988 clarifications were placed and attention was drawn to a number of orders which, according to the applicants, sustained that Catalytic Preparations and activated Earth were raw materials entitled to the benefit of notification No.201/79-C.E. because the use of the same in the production of Vanaspati was technological necessity. In paragraph 2(j) of the ROM application the applicants have stated that in the Drawback Rules, which are equally valid for Central Excise purposes, admitted Catalyst to be a raw material and it was urged in the E.A.-3 Form filed by the appellants, but this contention appears to have escaped attention of the Tribunal. During the hearing of the ROM application, Shri Chakraborty has stated that he relied on the following case laws at the time of hearing of the appeal :- He has also stated that he urged the point relating to Drawback Rules while arguing the appeal. On a thorough check of the records, we observe that he (consultant) referred to these case laws in a unsigned typed note which was submitted during the hearing of the appeal, but he did not address oral arguments on these case laws. In the said typed note, vide item 6 thereof, it was mentioned that Rule 3(2)(d) of the Drawback Rules, 1971 treated Catalyst as raw material. This being the position, we are inclined to add a paragraph in the impugned order.
3. In paragraph 2(k) of the ROM application the applicants have stated that the Collector of Central Excise (Appeals), Calcutta passed the order-in-appeal without application of mind and this contention will find support from the fact that he placed Nickel Catalyst in the category of capital goods and this fact was also stressed in E.A.-3 Form without any effect. During the oral arguments before the Bench on 13-9-1988 this point was not discussed by Shri Chakraborty. As this point was not argued during the hearing of the appeal, the Tribunal did not discuss the same in its order since in the absence of any specific argument it was to be presumed that this point was not stressed on behalf of the appellants during the stage of hearing. Even otherwise, this point would not make any difference in the view taken by the Tribunal in the impugned order. Therefore, there is no question of any mistake on the part of the Tribunal warranting any rectification on this point.
4. In paragraphs 2(b), (c), (d), (e), (0, (g), (h) and (i) of the ROM application, the applicants have submitted that on 12-10-1988 they brought to the notice of the Tribunal's Bench a case law reported in 1988 (36) E.L.T. 721(T) in the case of M/s. Kothari Industrial Corporation. It is also stated that on receipt of the Tribunal's Order No. 740/88-C, dated 16-9-1988 they contacted M/s. Tata Oil Mills and ascertained that the case covered by the decision of S.R.B. of the Tribunal related to Notification No. 201/79-CE. as amended. They have also stated that the decision of the Southern Regional Bench of this Tribunal reported in 1988 (14) ECR 129 should be followed in preference to this Tribunal's decision in the case of Kashmir Vanaspati reported in 1987 (31) E.L.T. 218 (Tribunal). It is also stated that in matters of classification uniformity in taxation should be followed and therefore, the relief enjoyed by Tata Oil Mills should be extended to the applicants. The other submissions made in these, paragraphs are in the nature of appellants' contention pleading for the benefit of Notification No. 201/79-C.E. as amended by Notification No.105/82-C.E., dated 28-2-1982. In this context, we are to observe that the impugned order of the Tribunal is dated 16-9-1988 and therefore, there was no question of considering the Tribunal's decision in M/s Kothari Industrial Corporation [1988 (18) ECR 344] as it was brought to the notice of the Tribunal in October, 1988. In the impugned order, the Tribunal discussed the reason for following the earlier decision in Kashmir Vanaspati case in preference to the decision of S.R.B., reported hi 1988 (14) ECR 129 in the case of Tata Oil Mills. In this regard, there is no mistake apparent on record. The Tribunal took a decision after due consideration of the facts of the case and the ratio of the earlier decision in an exactly similar case of Kashmir Vanaspati.
5. During the hearing of the ROM application, Shri Sunder Rajan has argued that there is no mistake of facts in the Tribunal's order. If there is any mistake in the decision of the Tribunal, that could be challenged before the Supreme Court and not before this Tribunal. He has also argued that the decision of the Southern Regional Bench of this Tribunal is not binding as the Larger Bench has held that the cases relating to Notification No. 201/79-C.E. falls under the jurisdiction of Special Bench of the Tribunal.
6. In the light of the above discussions, we make the following rectifications in the Tribunal's Order No. 740/88-C, dated 16-9-1988 :- (i) The name of Shri N.C. Chakraborty should be read in place of Shri K.M. Lakhotia wherever it occurs in the Tribunal's order dated 16-9-1988.
(ii) The following paragraph should be added as paragraph 3A after paragraph 3 of the Tribunal's order dated 16-9-1988 :-Collector of Central Excise, Nagpur v. Ballarpur Industries Ltd., Chandrapur, (ii) 1985 (21) E.L.T. 901 (Tribunal) (Decided on 22-4-1985) Collector of Central Excise, Bhubaneshwar v. Mis. Taaghur Paper Mills.
(iii) 1986 (25) E.L.T. 297 (Tribunal) (Decided on 25-6-1985) Collector of Central Excise, Hyderabad v. Mis. The Sir-silk Limited, Sirpur-Kaghaznagar(Cegat-Madras) Sandhur Manganese and Iron Ores Ltd. v. Collector of Central Excise, Bangalore (Decided on 21-3-1984) (v) 1980 (6) E.L.T. 538 (Guj.) (Decided on 4-7-1980) Suhrid Giegy Ltd., Ahmedabad v. Union of India and Ors.
the cases reported in 1983 (13) E.L.T. 1263 (Cegat), relate to Notification No. 201/79-C.E. before it was amended by Notification No.105/82-C.E. dated 28-2-1982. These decisions are not, therefore, applicable to the present case as it relates to post-amendment period.
The decision reported in 1985 ECR 1152 (Cegat) also relates to pre-amendment period as it appears from paragraph-9 and paragraph-2 of the said order of the Tribunal. Further, in that case, lime, alum, salt cake and sulphuric acid were used as inputs in the manufacture of paper, whereas the present case relates to the use of Nickel Catalyst and activated bleeching earth in the manufacture of Vanaspati. The facts of the cases are, therefore, distinguishable. Hence, we do not propose to follow the said decision of the Tribunal. In the case covered by the decision of the S.R.B., Madras of this Tribunal, reported in 1985 ECR 862, carbon electrode paste was used as one of the items in the production of pig iron ferrosilicon. In paragraph-9 of the said order, it was stated that "in the reaction zone, chemical reduction takes place and the carbon in the electrode paste which dissolves in the liquid bath of oxides takes part in the reduction". In paragraph-13 of the said decision it was observed by the S.R.B. that what constituted raw material would depend upon the facts and circumstances of each case. On the facts of that case, the Tribunal decided that the benefit of Notification No. 201/79-C.E., as amended, was available to the appellants therein. This decision cannot be applied to the present case as the facts are different. Further, the said case was decided on 21-3-1984 whereas in the case of Kashmir Vanaspati, reported in 1987 (31) E.L.T. 218 (Tribunal) which was decided on 6-9-1987, the facts are exactly similar to the present case and it was held therein that Nickel Catalyst and activated bleeching earth used in the manufacture of Vegetable products would not entitle the manufacturer of vegetable product to the concession under Notification No. 201/79-C.E., dated 4-6-1979 as amended by Notification No. 105/82-C.E., dated 28-2-1982. Gujarat High Court judgment relied on by Shri Chakraborty deals with the scope of Notification No. 16/62-C.E.and Tariff Item No. 14-E. The facts being different, the said judgment cannot be followed in the present case. Shri Chakraborty has also argued that catalyst has been treated as raw material in the Drawback Rules, 1971 and hence for the purpose of the aforesaid Notification nickel catalyst and activated bleeching earth should also be treated as raw material. This contention is not acceptable to us as the provisions of Drawback Rules cannot be an aid to the interpretation of an exemption Notification issued under Central Excise Rules, 1944. The scope of an exemption notification issued under Rule 8(1) of the Central Excise Rules should be determined on the basis of the language used therein."