1. The two questions arising for determination in this Revision application to Central Govt. transferred to the Tribunal to be disposed of as an appeal presented before it are ; (i) whether the demand of differential duty made by the Superintendent of Central Excise, Burnpur by Show Cause Notice dated 13-10-1976 for the period 1-3-1973 to 31-8-1975 amounting to Rs. 17,724.53 and confirmed by the Asstt. Collector of Central Excise, Asansol by Adjudicating Order No. 5/Cobble Bundles/ASN/78 dated 27-1-1978 is within limitation, and (ii) Classification of Cobble Bundles -whether they should be classified as re-rollable scrap under T.I. 26AA or Steel Melting scrap under T.I. 26 of the Central Excise Tariff.
The appellants bad been for nearly two decades paying duty on 'cobble bundles' as 'Steel Melting scrap' classifying them under T.I. 26 of the C.E.T. Sometime in 1976, Excise authorities felt that the goods were rightly classifiable as re-rollable scrap falling under T.I. 26AA. For the goods manufactured and removed during the period 1-3-1973 to 31-8-1975, the Supdt, Central Excise, Burnpur issued notice dated 13-10-1976 calling upon the appellants to show cause to the Asstt.
Collector why differential duty amounting to Rs. 17,724.53 be not realised from them. The appellants showed cause to the Asstt. Collector and he by his order dated 27-1-1978 confirmed the demand. The demand was upheld in appeal by the Appellate Collector of Central Excise, Calcutta by his order dated 20-7-1979. Hence the present appeal.
2. At the hearing, Shri N. Mukherjee, learned Advocate for the appellants argued that the appellants had in their classifications lists classified the goods under TI 26 of GET, disclosed all the necessary facts which the Excise authorities had scrutinised and accepted their classification lists. The appellants had accordingly paid duty. In the circumstances of the case, it cannot be said that there was any intention on the part "of the appellants to evade duty.
To such a case Rule 9(2) or Rule 10A of the Central Excise Rules, 1944 would not be applicable and the Rule applicable would be Rule 10 under which for the procedure followed by the Appellants, the limitation for making demand was one year. He submitted that the show cause notice dated 13-10-1976 issued by the Superintendent, Central Excise was barred by limitation. He also urged that the goods were correctly classifiable under T.I. 26 and not under T.I. 26AA as claimed by the Department. Shri Mukherjee, during the course of his arguments referred to large number of decisions of the Courts as also of the Tribunal, which would be taken note of at the appropriate place.
3. On behalf of the Respondent, Shri V. Luxmi Kumaran, SDR strongly defended the orders passed by the 'Asstt. Collector and Appellate Collector of Central Excise.
4. We have carefully considered the matter, the appellants had been filing classification lists classifying the goods under T.I. 26, which had been accepted by the Excise Department for nearly two decades. It is nobody's case that the appellants suppressed anything. Having regard to the decisions of the Supreme Court in N.B. Sanjana, Asstt. Collector of Central Excise, Bombay and Ors. v. The Elphinstone Spinning & Weaving Mills Co, Ltd.,R.K. Audim and Ors. v.Special Steel Ltd., Bombay and Ors., 1978 ELT(J 397), there can be no doubt that on the facts and circumstances obtaining in the case, the Rule applicable was Rule 10 and not Rule 10A, as claimed by the Department. The limitation for making demand under the Rule considering the procedure adopted by the appellants was one year, the show cause notice dated 13-10-1976 for the period 1-3-1973 to 31-8-1975 was clearly beyond one year of the period and therefore, barred by limitation. The demand would, therefore, have to be set aside on this very ground.
5. In view of the foregoing, it is not necessary to consider the classification of the goods whether this would fall under T.I. 26 or T.I 26AA of the CET. It is also not necessary to deal individually with the number of precedents cited by Shri Mukherjee.
6. As a result, the appeal is allowed on ground of limitation and the orders passed by the lower authorities set aside.