- (1.) By an order dated 28/10/1986 the appeal has been limited to two questions, namely, whether the case is covered by Rule 96-YYY and the impact of Ground VIII of the Memo of Appeal. We may state that in the order by mistake it has been mentioned as Section 96 (NNN) , but there is no dispute that it should be read as Rule 96-YYY. That Rule reads as under: "Nothing contained in this section shall apply to a manufacturer who employs, or had at any time during the calendar year preceding the date of application, employed, more than five workers. "the submission of the learned counsel for the appellant was that paragraphs 7 and 8 of the tribunal's judgment would show that one extra workman doing packing work was noticed on 23/6/1978, 26/6/1978, 14/1/1980 and 21/3/1981 and for this casual presence the benefit has been denied to the appellant. Our attention was also drawn to the Collector's order wherein it is stated that he was satisfied that on 23/6/1978 and 26/6/1978 six workers were engaged and on 14/1/1980 also six workers were engaged. Consequently, the benefit to the assessee was restricted to 1978-79 since during that year it was not shown that more than five workers were employed. The learned counsel for the appellant submitted that under Rule 96-YYY such casual presence on one or two days in a calendar year should not be interpreted to deny the appellant the benefit of rebate. The learned Additional Solicitor General, however, drew our pointed attention to the observations in paragraph 9 of the tribunal's judgment and pointed out that it is not correct to assume that more than five workers were employed only on the aforesaid dates as the evidence clearly indicated that there were statements of workers to the effect that more than five persons were regularly engaged in the factory. It may be stated that the wife's factory was in the same building and the workmen of the wife's factory used to come and work at this factory as the wife's factory was on the upper floor. The Manager for both the factories was common. This evidence, if taken into consideration, would go to show that the workers of the wife's factory worked in the appellant's factory without their presence being marked in the factory except on the aforesaid dates. This being a question of fact and the view taken not being perverse we see no reason to interfere on that count.
(2.) The learned counsel for the appellant, however, is on a firmer ground when he states that the Collector refused the benefit for the years 1979-80 and 1980-81 whereas he allowed the benefit under 1978-79. That is indeed correct. He, therefore, submitted that his appeal was confined to the years 1979-80 and 1980-81 and yet the tribunal while disposing of his appeal denied him the benefit for the year 1978-79. It appears that this is a mistake apparent on the face of the record. Instead of mentioning the years 1979-80 and 1980-81 the tribunal has, in paragraph 16 of the judgment, mentioned the years 1978-79 and 1979-80. This mistake needs to be corrected. We, therefore, correct the same and hold that the benefit granted for the year 1978-79 was not the subject-matter of the appeal which the tribunal disposed of on 30/6/1986. To that extent, the order of the tribunal will have to be corrected and modified.
(3.) It may now be mentioned that for the year 1978-79 since the Collector had granted the benefit the Revenue carried the matter in appeal to the tribunal. When the Revenue's appeal came up for hearing before the tribunal all that the tribunal did was to say that in view of its judgment dated 30/6/1986 in Appeal No. 588 of 1984 the Revenue's appeal must beallowed and the benefit for the year 1978-79 would not be available to the assessee. That has required the assessee to come in appeal, being Appeal No. 8456 of 1995. This was clearly based on the error in the tribunal's judgment a dated 30/6/1986. Since we have corrected the error this appeal by the assessee must be allowed and the matter must go back to the tribunal for disposal on merits.;