1. The two questions surviving for consideration in this Appeal are whether (i) the time limit of raising demand of duty should have been extended time limit of 5 years or the shorter time limit of 6 months; and (ii) the duty should have been determined under Rule 9A(5) of the Central Excise Rules, 1944, as held by the lower authorities or under Rule 9A(l)(ii) as claimed by the appellant.
2. In the grounds of appeal the appellants had claimed that parts of cash registering machines were not classifiable under Tariff Item 68 but under Item 33-D. This plea was given up by Shri V. Sridharan, Chartered Accountant representing the appellants. We have therefore, to confine ourselves to the two questions set out in para 1 of the order.
3. While the Department claimed that parts of cash registering machines were classifiable under Tariff Item 68 of the Ist Schedule to the Central Excises and Salt Act, 1944 (hereinafter called Tariff Item), the appellants all along contended that they were classifiable under Tariff Item 33-D. This contention, according to the Collector (Appeals), constitutes mis-statement so as to attract the extended time limit of five years set out in Section 11A of the Act. For proper appreciation, the material part of the order of the Collector (Appeals) is extracted below : "This issue can be straightaway disposed of because the appellants have all through been insisting that the parts of cash registers were not liable to duty and that these were covered under Tariff Item 33-D and not under Tariff Item 68 as held by the department. By insisting on this, they have been making mis-statement and when a mis-statement is made, the period of limitation applicable is 5 years. Therefore, in their case the extended period of 5 years as made applicable by the Assistant Collector would correctly apply." 4. We do not think that contention of the party that the goods fell under Tariff Item 33-D as against Tariff Item 68 claimed by the Department would constitute mis-statement, much less wilful mis-statement, within the meaning of Section 11A of the Act so as to justify invoking of 5 years time limit for raising the demand. In spite of the claim of the party, nothing prevented the department to secure their rights by raising appropriate demands of duty within time and on this account the appellants cannot be held guilty of wilful mis-statement. We do not agree with the contention of learned S.D.R.Mrs. V. Zutshi that even such contentions could constitute wilful mis-statement and would attract the higher time limit of 5 years for raising a demand against the party. We hold that the time limit applicable in such a situation would be the shorter time limit of 6 months.
5. As to the next point whether duty should have been worked under rule 9A (l)(ii) which provides for the rate of duty and tariff valuation on the date of actual removal of such goods from the factory or warehouse as the material date as against Sub-rule (5) of Rule 9A which is a residuary provision providing for the determination of duty at the rate and on valuation in force on which the duty is paid, Shri V. Sridharan has relied on Dayaram Metal Works Pvt. Ltd., Bilimora v. Collector of Central Excise, Baroda [1985 (20) E.L.T. 392 (Tribunal)] and has submitted that in view of this decision the provision applicable would be the one claimed by the appellant and not Sub-rule (5) of rule 9A applied by the Department. The appellants, it is not disputed, had cleared the goods on the strength of proper excise papers and the date of actual removal of goods from the factory was well-known to the department. To us it appears that on the facts and circumstances of the case, Sub-rule (5) would not be applicable and the rule applicable would be the one claimed by the appellants. We hold accordingly. As a result, the demand of duty from the appellants is restricted to a period of six months and the same shall be worked out as provided in Rule 9A(l)(ii) of Rules. The appeal is disposed of in these terms and order-in-appeal modified accordingly.