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18. Ordered accordingly.

Sd/-

(G.N. Srinivasan) Member (J) Date 16 July, 1999 Gowri Sankar, Member (T)

19. I would like to add the following to the order proposed by my colleague.

20. The position that now prevails is that there are two decisions of the Tribunal on this issue, each taking a point of view diametrically opposite to the one that taken in the other. It is, as has been said, somewhat surprising that the existence of the earlier order was not brought to the notice of the bench which passed the latter order. Whether, if that decision had been brought to the notice, it would have taken a different view, is not a question that can be answered now with any degree of certainty. It is however reasonable to say that a different view might have emerged. It may no doubt be true, as Shri Lodha, advocate for the appellant says, that it is not necessary, where there are differing judgements on the same question, that a reference be made to a larger bench to decide which of the two views is correct. He cites the decision of the Bombay High Court in Sitaram Hari Salunke v. Lakshman Rambodh Dubey and the concurring Judgment of Sahai J in State of UP v. Synthetics and Chemicals Ltd. . The view expressed by that learned judge was that any declaration or conclusion arrived at in a Judgment without application of mind is preceded with any reason cannot be deemed to be a declaration of law or authority of a general nature binding as a precedent. Such a decision passed sub silentio. It is contended that this is the position with regard to the earlier decision in Weston Electronics v. CCE. Shri Lodha contends that the earlier order was passed on an erroneous appreciation that what was required to be paid on inputs cleared, from a 100% Export Oriented Unit of the goods cleared to the domestic tariff area. The additional duty, and on this basis has restricted the amount of credit to the additional duty paid on the input which was nil in the case before him. This is not, in our view, the correct position. No doubt, there is a reference in the last paragraph of the order to the amount of credit of duty required to be restricted to the amount of additional duty paid on the inputs. There is also, no doubt, a reference to notification 127/84 exempts all excisable goods for manufacture of 100% export oriented unit equivalent to the duty leviable on it under Section 3. It is true that the exemption is not to additional duty of Customs cannot be, since there is no question of payment of Customs duty on the goods manufactured in India. What it exempts is excise duty equal to the extent of additional duty payable on such goods if imported into India. These errors however appear to be mere errors in drafting than errors of substance. The Tribunal in the same paragraph has specifically referred to in the proviso to notification 177/86 of the Modvat credit to the extent of duty paid on such inputs.