department is in appeal and assessee has filed cross-objection and both these arise out of common order of Commissioner (Appeals) for assessment year 1978-79. 2. question at issue is whether firm engaged in business of construction dams, etc., was entitled to deduction under section 80HH of Income-tax Act, 1961 (the Act). ITO held that assessee was not entitled to deduction while Commissioner (Appeals) held in favour of assessee. 3. We have heard learned departmental representative and also learned counsel for assessee. learned departmental representative placed reliance on order of Full Bench in case of ITO v. Hydle Constructions (P.) Ltd. [1983] 6 ITD 575 (Delhi) for proposition that assessee was not entitled to deduction under section 80HH, because end product of assessee being dam cannot be considered to be article within meaning of section 80HH (2) (i). learned counsel for assessee did not dispute that Full Bench order did cover point at issue but his contention was that we should follow decision of Bombay High Court in CIT v. Hindustan Antibiotics Ltd. [1974] 93 ITR 548 in preference to Gujarat High Court ruling in Cellulose Products of India Ltd. v. CIT [1977] 110 ITR 151, which has been followed by Full Bench of Tribunal. It was urged that this Bench sitting in Bombay was bound to follow decision of Bombay High Court. 4. learned departmental representative placed reliance on ruling of Bombay High Court in CIT v. Shah Construction Co. Ltd. [1983] 142 ITR 696 but learned counsel for assessee pointed out that it was case not under section 80HH and was, therefore, not applicable. 5. We have heard rival contentions. Dealing first of all with contention of learned counsel for assessee we find that in Hindustan Antibiotics Ltd.'s case (supra) Bombay High Court had held that assessee could not be said to have started manufacturing articles when it manufactured crude penicillin samples of which were required to be sent to USA and UK for obtaining certificates as to their quality. Only when assessee started regular production of sterilised penicillin, only product that c o u ld be sold in market, can assessee be said to have started manufacturing article within meaning of section 15C of Indian Income- tax Act, 1922. Gujarat High Court in Cellulose Products of India Ltd.'s case (supra) took view that when company started production of cellulose pulp, which was intermediate product, in its cellulose project, it could not be said to have begun to produce or manufacture articles within meaning of section 84 of Act. On face of it, there is really no conflict between rulings of Bombay and Gujarat High Courts, though on p. 554 Bombay High Court appears to have held that when assessee starts manufacturing articles which are capable of being used by it for manufacture of production of finished goods, which are ultimately sold by company, it can be said to have started manufacture or production of goods. 6. In our opinion, difference between two ruling has really no bearing on point at issue that arise in this appeal before us. Bombay High Court ruling in Shah Construction Co. Ltd.'s case (supra) was dealing with case under Schedule I, Part II, Para D of Finance Act, 1964, and question at issue was whether assessee-company was entitled to rebate which it would be entitled if it was wholly or mainly engaged in manufacture o r processing of goods. assessee in that case was engaged in construction of dams, bridges, buildings, etc. Tribunal held that buildings and bridges, etc., could not be said to be 'goods' and assessee-company could not said to be engaged in manufacture of goods. Bombay High Court upheld that finding. Tribunal further held that whatever little processing of goods assessee was involved in, such as mixing of certain materials to make concrete, cutting of boulders into stones, etc., it was only incidental or subsidiary to main activity of construction. When compared with principal business of assessee, such processing was only very small component of its activity. High Court upheld this finding also and held that any activity of assessee which might be described as 'manufacture of goods or processing of goods' is ancillary to construction activity of assessee. At highest, it could be described as feeding activity. 7. In our opinion, this ruling of Bombay High Court clinches issue in 7. In our opinion, this ruling of Bombay High Court clinches issue in favour of revenue because if construction of buildings and bridges were to amount to manufacture of goods or articles, then company would certainly have been declared as industrial company entitled to rebate because if its main business fell within definition of 'industrial company' then it would amount to its being wholly or mainly engaged in manufacture or processing of goods, but High Court did not hold it to be so. Therefore, contention of learned counsel for assessee is of no avail. ruling of Full Bench in case of Hydle Constructions (P.) Ltd. (supra) is clearly applicable. It is true that ruling of Orissa High Court in case of CIT v. N. C. Budharaja & Co. [1980] 121 ITR 212 is directly on point at issue, i.e., under section 80HH, but in view of later decision of Bombay High Court in Shah Construction Co. Ltd.'s case (supra) and also decision of Full Bench of Tribunal, we are unable to follow Orissa High Court ruling in this regard in spite of fact that learned counsel pressed us to follow that ruling in view of Bombay High Court decision in CIT v. Smt. Godavaridevi Saraf [1978] 113 ITR 589. We therefore, hold that Commissioner (Appeals) was in error in holding that company was entitled to section 80HH deduction. We set aside order of Commissioner (Appeals) and restore that of ITO. 8. In light of our above discussion, cross-objection filed by assessee become infructuous. 9. In result, appeal filed by department is allowed. cross- objection of assessee is dismissed. *** SECOND INCOME TAX OFFICER v. MITTAL & CO. (MRP)