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TMI Blog1990 (9) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to have arisen out of that part of the Order-in-Appeal which was against the Order-in-Original F. No.V-68(4)12/MP/84 dated 15-11-1984 passed by the Assistant Collector of Central Excise, Baroda (pages 23 to 27) of the respondents paper book). Therefore, the present order covers only the above matter. Shri Chakravorty requested that leave may be granted for filing supplementary appeals, together with applications for condonation of delay, in respect of the other two matters covered by the impugned order. The appellant-Collector is at liberty to do so and if and when supplementary appeals are filed with COD applications, they will be taken up for hearing. 3. The issue arising for determination in the present appeal is whether the product called Vardhak containing the chemical Alpha Naphthyl Acetic Acid manufactured by the respondents was eligible for excise duty exemption under Notification No. 234/82 dated 1-11-1982, as amended, or under the relevant notifications for the time being in force during the period March 1979 - August 1984. The relevant entry which had not undergone any verbal changes read during the period as :- Insecticides, Pesticides, Weedicides and Fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been defined. Insecticides are subject to rigorous control exercised by the Central Government through the Central Insecticides Board and State Governments in terms of the provisions contained in the Insecticides Act, 1968. No one may manufacture any insecticide without obtaining, and save in terms of, a licence issued by the licencing officer. Any person deciding to manufacture any insecticide is also required to register such insecticide with the Registration Committee constituted for the purpose. There is a schedule attached to the Act which lists substances recognised as insecticides for the purpose of the Act. At serial number 128 of the Schedule, is specified naphthyl acetic acid and its derivations. There is no doubt that the instant product is registered and recognised under Section 9(3) of the Insecticides Act. As seen from the Asstt. Collector s order, the Ministry of Agriculture and Irrigation have issued a certificate dated 12-2-1976 of registration of the product vardhak under the Insecticides Act. When the manufacture of certain goods is governed by, and subject to, the stipulations under a specific enactment relating to those goods, it cannot, in our opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/87-C - Order No. 428/88-C dated 2-5-1988] has taken the view that the Insecticides Act, 1968, or the Schedule thereto would not govern the meaning of the terms insecticides , pesticides , etc., used in the Central Excise notification. We are, therefore, coming to our conclusion in the present case not on the basis of the discussion in this sub-paragraph. (b) The Import and Export Policy of the Government of India April 1985 - March 1988 Volume I ( Imports and Exports Promotion ) has an Appendix 3 which is a list of raw materials, components, consumables, tools and spares - a list of limited permissible items. In Part-A of the said Appendix which is entitled Raw materials, Components, Consumables, Tools and Spares (Other than Iron and Steel and Ferro Alloys) , serial number 219 lists certain insecticides, pesticides and weedicides. Alpha Naphthyl Acetic Acid is one of them. The groupings and nomenclature used in the Import and Export Trade Control Policy which governs the external trade of the country may, we feel, be taken to be a fair index of howgoods are known in Trade and Commerce. (c) In a publication of the Central Board for the Prevention arid Control of Water Pollu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendix titled Pesticides: a guide to terminology . Plant Growth Regulators are shown as a main group under which are listed Growth Promotants, Growth Inhibitors etc. Naphthaleneacetic acid is shown as a fruit setting, ripening, flowering agent. f) Volume 12 of Kirk-Othmer s Encyclopaedia of Chemical Technology (extracts at page 61-65 of the respondents paper book) shows at page 301,1-naphthaleneacetic acid in the list of common and chemical names of Herbicides. Herbicide itself comes under the broad description of pesticide (see the New Pesticide User s Guide , referred to earlier - page 52 of the respondents paper book). 7. It may thus be seen that not only technically and scientifically but also in the parlance employed in trade and commerce, plant growth regulators are considered as falling in the group insecticides, pesticides however much such a position may appear prima facie repugnant to commonsense. 8. In our considered opinion, therefore, there is a good case for holding that plant growth regulators are covered by the term insecticides or pesticides in the Central Excise notification. However, the issue having been considered at great length by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 100 ml and 500 ml pickings. Under column 5, the rate of duty has been shown as 1% and under column 6 for showing the number and date of the relevant notification, no notification has been cited. It is not clear how, in the circumstances, the goods were cleared free of duty. In so far as the disputed period is concerned, the allegation in the show cause notice is that the product was cleared as an insecticide. If that be so, we do not see how there has been any misdeclaration keeping in view the discussion on the merits of the issue in the earlier paragraphs and the disputatious nature of the issue. We hold that the Revenue in this case was not entitled to invoke the extended period of limitation and is entitled to recover duty only in respect of the period of six months preceding the dates of receipt by the respondents of the respective demand show cause notices. 11. The appeal is partly allowed in the above terms and, for the rest, the impugned order is upheld. Since the Collector (Appeals) had given complete relief to the respondents, there was no cause for filing a cross objection. During the hearing, when this was pointed out to the Counsel, he appreciated the position and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms and meanings of the notification while the MSCO Pvt. Ltd. case (supra) dealt with the expression of industry and its varied meaning and that too under the Industrial Disputes Act. I find that the Tribunal has not gone through all the products in question with regard to tariff entry nor has considered the various arguments put forth by the respondents to come to the conclusion on merits. As such, Agromore s case will not be a bindings precedent for this case. In this connection, I draw my strength from the observations made in AIR 1987 SC 1140 para 7 wherein it is observed that if a decision of this Court is given per incuriam, that is, without taking note of the appropriate legal provisions can that decision be treated as a binding precedent? Is it not a circumstance in jurisprudence which entitles a Court to disregard an earlier judicial precedent? 14. In the Seven Member Bench of the Hon ble Supreme Court, in the case of A.R. Antulay v. R.S. Nayak and Another - AIR 1988 SC 1531, the Supreme Court has clearly laid down the circumstances under which the judgments will be per incuriam and will have no binding effect if the merits of the case has not been gone into. The Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 6 months preceding the dates of receipt by the respondents of the respective show cause notices; OR the appeal should be dismissed on the basis that the Tribunal s decision in the Agromore case is not applicable to the present case". 18. Shri Chakraborty, the learned DR submitted that in the present appeal Revenue relied on the judgment of the Tribunal in Agromore Ltd. v. Collector of Central Excise, Bangalore (supra) (hereinafter referred to as Agromore). The learned DR s main thrust was the argument that distinction from other enactments is not applicable to a Notification under the Central Excise Law and such notifications should be interpreted strictly and in the light of their own language. In this context the learned representative cited 4 judgments delivered by the Privy Council (1982 AIR 9 PC, 181), the Supreme Court, Union of India and Others v. R.C. Jain and others -1981 SC 951 and MSCO Pvt. Ltd. v. Union of India, a judgment relied on in Agromore reported in 1985 (19) E.L.T. 15 S.C and 1986 (26) E.L.T. 201 (Mad.) Venkateswara Stainless Steel and Wire Industries v. Union of India. Shri Chakraborty submitted that the President s reference to the judgment of the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1947 will not apply to the Notification according to exemption under the Customs Act. In paragraph 4 of the judgment the Supreme Court observed that it is hazardous to interpret a word in accordance with its definition in another statute or statutory instrument and more so when such statute or statutory instrument is not dealing with any cognate subject. (quoted from Craies on Statute Law, 6th edition, page 164). In UOI v. R.C. Jain (AIR 1981, S.C. 951) (supra), the Supreme Court held that if a particular expression is not defined in an Act, its definition in another Act cannot be imported into the former Act. There are other judgments cited by the learned DR. Therefore, while this proposition, that the definition given in one Act cannot be used to interpret the same term appearing in another Act, is well supported by case law, I observe that the President did not base his finding solely on the definition given in the Insecticides Act. 22. The next question would be whether as opined by the learned Member (Judicial), the judgment in Agromore should be considered as having been per incuriam. These findings would also dispose of the learned Advocate s argument that if some jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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