Satish Chandra, C.J. - (1.) Messrs R.G. Paper and Straw Board Mills, the petitioner appears to have cleared mill board manufactured by it from 19th December, 1971 to 12th December, 1972, and paid excise duty thereon. On 15th December, 1972, the Superintendent, Central Excise, Hathras, issued a notice to the petitioner to show cause as to why the additional duty be not charged. Apparently he was under the belief that the petitioner has been under charged. The petitioner filed a reply and the matter was ultimately decided by the Assistant Collector, Central Excise, Aligarh on 21st July, 1973, He held : "I am of the opinion that the Board manufactured by M/s. R.G. Paper and Straw Board Mill manufactured from mixed waste paper along with some percentage of Straw of other agricultural residues does not conform to the specification of a 'mill board' as given in Notification No. 35/64-C.E., dated 1-3-1964 and as such are not eligible for any slab concession. I, therefore, order that the Board manufactured out of waste paper mixed with straw and cleared by them is to be assessed to duty as Board other sorts at the following rates giving allowance of the duty already paid by them as detailed below : ..."
(2.) The petitioner felt aggrieved and went up in appeal. The appeal was, however, dismissed on 10th March, 1975, by the following finding : "The two definitions are independent of each other and the proviso mentioned above is applicable to only straw board and hot to mill board. The appellant's centention that the above proviso applies both to the mill board and straw board cannot be accepted. It is, therefore, obvious that by virtue of the fact that the board manufactured by the appellant with a composition of mixed waste paper, screenings, mechanical pulp as well as bagasse or straw does not fall within the definition of mill board. Also in view of the fact that the above board is not predominantly made out of partially cooked unbleached straw or bagasse or grasses etc. and contains more than one third weight of other materials does not fall within the definition of straw board also. Having regard to the above facts and circumstances of the case the board manufactured by the appellant has rightly been classified by the adjudicating officer as 'other boards' and does not attract the benefit of notification No 35/64 dated 1-3-64 as amended from time to time. The order appealed against is therefore correct in law and based on facts and I see no reason to interfere with the same."
(3.) The petitioner then went up to the Government of India in revision. The revision, however, was also dismissed with the finding : "The explanation to Notification No. 67/66 defines the terms 'mill board' and 'straw board' for purposes of that notification. Proviso (1) refers to the quantity of any other material used which shall not exceed l/3rd in weight of the total weight of the ingredients. In defining a mill board, it has been provided that it is to be made out of mixed waste papers and mechanical pulp. There is no provision therein for any other ingredient being used. The question of limiting the quantity of any 'other material used' in the manufacturing of a millboard does not therefore arise for determination. Hence, the proviso cannot be applicable to millboard. In the case of strawboard, it is stated that it is made wholly or predominantly from unbleached straw or bagasse or grasses or a mixture of these. When a strawboard is made predominantly from any of these items or a mixture thereof, there is scope for the use of any other material and hence the need to fix a limit therefor. Under the circumstances, it is clear that the proviso to the Explanation refers only to strawboard and not to millboard." Thus, according to the Assistant Collector the board manufactured by the petitioner was not millboard as defined in the relevant notification because it had some percentage of straw or other agricultural residue. The appellate authority upheld this view. In addition it held that since the board manufactured by the petitioner contained more than onethird weight of other material, even the proviso was not satisfied. Thirdly it also held that the proviso was applicable only to strawboard and not to millboard. The Centra] Government in its revisional order upheld the finding of the appellate authority that the proviso was not applicable to millboard. It did not go into the question whether the proviso was, on facts, satisfied or was excluded. It does appear to us that the appellate as well as the revising authorities were agreed that the proviso was not applicable to millboard.;