Brijesh Kumar, J. - (1.) Since the above noted two appeals involve a common question for determination, as to the interpretation of a notification issued by the Central Government under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, exempting goods falling under Item No. 68 of the First Schedule to the Central Excises and Salt Act 1944, on fulfilment of certain conditions, the appeals are being disposed of by this common judgment. As usual in such cases, the Revenue is trying to bring manufacturers within its net to charge it with the excise duty whereas the manufacturer-respondents trying to get out of it claiming benefit under the aforesaid Notification.
(2.) The brief facts of the case are that the manufacturer-respondent, Himalayan Co-operative Milk Product Union Limited manufactures butter and skimmed milk powder etc. in its industrial complex. For purposes of chilling plant of Dairy Unit, the respondent seems to have installed plant manufacturing liquid nitrogen which item, undisputedly falls under Item 68 of the Excise Tariff. By means of Notification No. 105/80-C.E. dated 19-6-1980 the excise duty payable on goods falling under Item No. 68, is exempted in respect of the first clearances of the said goods for home consumption by or on behalf of a manufacturer from one or more factories up to a value not exceeding rupees thirty lakhs inter alia on the condition that the total of the value of the capital investment made from time to time, on the machinery installed for manufacturing said goods is not more than rupees ten lakhs. According to the manufacturer-respondents the total capital investment in the plant and machinery manufacturing liquid nitrogen is less than rupees ten lakhs, therefore the benefit of exemption from excise duty is admissible under the Notification in question dated 19-6-1980.
(3.) The Assistant Collector, Central Excise, Siliguri Division by order dated 5-9-1983 rejected the claim of the respondents and confirmed the demand as raised by the Superintendent of Central Excise under Central Excise Rules, observing that the respondents are using all the plants and machinery for purposes of manufacturing all kinds/varieties of excisable goods falling under different Tariff items, the total value of capital investment of all plants and machineries, installed in the said factory are to be taken into account and no exemption on investment which was more than ten lakhs was admissible. Thus according to the excise authorities the total value of investments in all the plants manufacturing butter and skimmed milk powder and other dairy products as well as for manufacturing of liquid nitrogen was to be taken into account. According to the respondents Himalayan Co-operative Milk Product Union Limited the value of investment on liquid nitrogen plant which alone is relevant is much less than rupees ten lakhs. The appeal preferred against the order of Assistant Collector was also dismissed by the Collector (Appeals), Central Excise, Calcutta by order dated 9-1-1984. Both the authorities have, however, held that liquid nitrogen itself is a finished product and falls under Tariff Item 68.;