- (1.) These two appeals involve identical questions and are, therefore, disposed of by this common judgment. Appeals are directed against the orders passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short the" "CESTAT") and Customs, Excise & Gold Control Appellate Tribunal, New Delhi (in short the "CEGAT"). The appeals filed by the appellants were dismissed by CESTAT holding that they were not entitled to benefit of concerned notifications. In case of appellant M/s Vimal Textile Mills, the concerned Notifications were Notification No.28/94-CE dated 1.3.1994 the Notification No.8/96-CE dated 23.7.1996 and its successor Notifications. CESTAT denied the benefit relying on a larger Bench"s decision in the case of M/s Mathania Fabrics v. Commissioner of Central Excise, Jaipur [2002 (142) ELT 49 LB]. Same is the subject matter of challenge in C.A.No.5398 of 2002.
(2.) Background facts in a nutshell are as follows: Appellants are engaged in the processing of cotton fabrics falling under Chapter 52. They claimed to be undertaking the processes of bleaching, mercerising, dyeing, printing, washing, drying and finishing before the fabrics were packed and cleared. Note 3 to Chapter 52 reads as follows: "In relation to the manufacture of products of Heading Nos. 52.07, 52.08 and 52.09, bleaching, mercersing, dyeing, printing, water proofing, shrink-proofing, organdie process or any other process or any one or more of these processes shall amount to manufacture."
(3.) In Civil Appeal No.1856 of 2005 the stand taken by the appellants was that they were not using power in the processing of the fabrics and, therefore, the benefit which they were earlier availing was available. They had not used any power while undertaking the activities of bleaching, mercersing, dyeing, printing, washing, drying and finishing before the fabrics were packed and cleared. It was further submitted that the Notification No.5/99 was amended by Notification No.35/99-CE dated 28.8.99 and the same was applicable retrospectively and the Explanation below serial No.102 of Notification No.5/99 was substituted as under: "Explanation- For the purposes of this exemption, cotton fabrics subjected to any one or more of the following processes with the aid of power, shall be deemed to have been processed without the aid of power or steam, namely:- (a) lifting to overhead tanks or emptying in underground tanks handling of chemicals such as acids, chlorine, caustic soda.";