1. A question relating to the construction of Explanation I to Notification Nos. 24/75 and 25/75 both dated 1-3-1975, as amended by Notification Nos. 183/75 and 184/75 dated 30th August, 1975, arises in this proceeding transferred to the Tribunal pursuant to Section 35(P) of the Central Excises & Salt Act, 1944 and heard and disposed of as an appeal.
2. The facts of the case are not in dispute. The appellant manufactures toilet and washing soaps/assessable under Item 15 of the Central Excise Tariff, using rice bran oil and Rosin amongst other raw materials. It would appear that with a view to encourage use of rice bran oil or other minor oils in the manufacture of soaps, certain incentives by way of rebate of duty on the finished product according to the percentage increase in the use of such rice bran oil or other minor oils in excess of twenty five per cent of the "total oils" used in the manufacture had been afforded in the aforesaid Notifications. Explanation I to the aforesaid Notifications defining "total oils" read, at the relevant time, as follows : "The Expression "total oils" includes saponifiable materials such as all oils and fats of Vegetable origin, all oils and fats of animal and fish origin, tallow, hydrogenated vegetable oils and products, acids, fatty acids, soap stock and soap scrap".
Although, admittedly, Rosin is a saponifiable material, the appellant had been excluding the same from the computation of total oils to arrive at the percentage of increased use of rice bran oil/minor oils for the purpose of availing themselves of the exemption under the aforesaid Notifications. The present proceeding is a sequel to the dismissal of the appeal against the orders of the Assistant Collector of Central Excise confirming the demand for short levies from the appellant.
3. It does not appear that any exception can be taken to the order-in-appeal of the Collector (Appeals). The Explanation extracted supra would appear to be an inclusive definition of the expression "total oils". The use of the words "such as" signifies that the oils and fats mentioned are merely illustrative and not exhaustive. Once Rosin is saponifiable there is no reason as to why it should be excluded from the scope and ambit of the expression "total oils" or the computation thereof notwithstanding that it is not specifically mentioned in the Explanation defining "total oils". Nor can it be contended that Rosin is excluded from the ambit of expression "total oils" merely because of the fact that the Explanation does not refer to "all" saponifiable materials. An inclusive definition with illustrations dispenses with specific and exhaustive enumeration.
(a) the inclusion of Rosin in the aforesaid Explanation by way of subsequent amendment; or (b) a construction of the Explanation in a case relating to another assessee in favour of the contention advanced for the Appellant cannot avail the Appellant.
Subsequent amendment was by way of clarification. A wrong decision in another case cannot lend support to the Appellant's contention in this case.
6. Incidentally, it would appear that this is not a case where either the rate of duty or value for the purposes of assessment, is one of the issues raised. It is the quantum of duty that is in issue, the rate of duty and the limit of exemption having been admitted. It could have been, therefore, heard and decided by a Division Bench of this Tribunal and not necessarily by the Special Bench. However, since the matter was placed before us in the Special Bench and we are not without jurisdiction to deal with it we have disposed it of.
7. For the reasons recorded vide our majority judgment in Appeal No.ED(SB)(T)(A), 19/77-C & 45 to 48/77-C and making the majority view there as the basis, we hold that the observations expressed by our learned Brother. Shri M. Gouri Shankar Murthy in Para 6 of his proposed Order cannot be valid. Since we are in agreement with him that there are no merits in the appeal, the same is dismissed.