Judgment

SABYASACHI MUKHARJI, J. :- The Collector of Central Excise, Kanpur, is the appellant in this appeal under Section 35L(b) of the Central Excises and Salt Act, 1944 (hereinafter called the Act). The period involved in this appeal is the assessment period from 25th March, 1979 to 24th September, 1979, a period of about six months. The respondent M/s. Krishna Carbon Paper Company was engaged in the manufacture of carbon papers. During the period from 25th March, 1979 to 24th September, 1979 the respondent manufactured and cleared from its factory a quantity of 5601 boxes, 20,288 reams and 45 packets of carbon papers for a total value of Rs. 7,67,498.40 without payment of any duty under the Act. The Superintendent of Central Excise, Lakhimpur Kheri, issued notice to the respondent demanding Central Excise Duty on carbon paper cleared during the aforesaid period under Section 11A of the Act. The respondent submitted a written reply stating that the notice was without jurisdiction because the respondent had taken out the central excise licence immediately on the direction of the department and it was only after February 28, 1982 that the product was subjected to duty under sub-item (3) of item 17 by the Central Excise Budget of 1982. In support of this contention, the respondent relied on Notifications Nos. 107/82 and 69/82, both dated 28th February, 1982. It was contended that the carbon paper was a new item which was specified under sub-item(3) of item 17 of C.E.T. According to the revenue, however, that the recasting of Tariff Item 17 in 1976 was irrelevant and that the carbon being akin to coated paper (one side or both side) was covered under sub-item (2) of item 17 of the C.E.T. since 1976. The submission of the respondent was that sub- item (3) of item 17 of the C.E.T. covering the carbon paper including copy paper was inserted by the Central Excise Budget 1982, but it does not make any retrospective change. It was, according to the appellant, an introduction of specific name or variety of paper for being subjected to a different rate of duty. The carbon paper remained a coated paper already covered under sub-item (2) of item 17 of C.E.T. The Assistant Collector of Central Excise, Sitapur, by his order dated 27/30th April, 1983, confirmed the demand for basic excise duty amounting to Rs. 1,15,124,76 and special excise duty of Rs. 5,756.23 on carbon paper cleared during the period from 25th March, 1979 to 24th September, 1979. The Appellate Collector, however, set aside the order of the Assistant Collector and was of the view that the carbon paper could not be classified under Tariff Item 17(2) of the Act, as it was before 1982. The Collector (Appeals) accepted the respondents contention that the carbon paper was brought under the purview of Tariff Item 17 for the first time in 1982 when it was introduced as sub-item (3) of Item 17 of the First Schedule to the Act with effect from 1st March, 1982. Being aggrieved thereby the appellant preferred an appeal before the Appellate Tribunal. The Appellate Tribunal dismissed the appeal. Hence, this appeal.,

2. The question for decision in this appeal is: whether carbon paper before the introduction of Central Excise Budget in 1982 and consequential amendment in tariff, fell under item 68 of the First Schedule to the Act, as held by the Tribunal or under item 17(2) of the Tariff Item, which was claimed by the Collector of Central Excise. Following its previous decision in the case of Sai Giridhara Supply Co. v. Collector of Central Excise, Bombay, (1987) 28 ELT 438 (Tribunal), the Tribunal upheld the contention of the respondent and held that for the period before the amendment of Central Excise Budget, in 1982, carbon paper fell under Tariff Item 68 and not under Tariff Item 17(2), as it then was. The Tribunal did not go into the question of the limitation, namely, whether the claim was barred in any event by the lapse of time in view of Section 11A of the Act. The Tribunal came