(1) IN exercise of power conferred by Section I I-A of the central Excises and Salt Act, 1944 (hereinafter called the Act) three show-cause notices were issued to the respondent on the allegation that it had failed to pay the duty on coal cinders payable under Tariff Item No. 68. The first notice is dated 17/10/1983 covering duty period from 1/4/1981 to 31/1/1983. The other two notices dated 7/11/1983 and 19-11-1983 are to show cause why penalty should not be imposed under Rule 9(2 read with Rule 173-Q of the central Excise Rules, 1944. The question of penalty would arise only if the department is able to sustain its demand under the first notice dated 17/10/1983.

(2) THE assessee contended before the Additional Collector of central Excise that the show-cause notice was time barred under the main part of Section 11-A since it was issued after the expiry of the period of six months stipulated therein but the Additional Collector sustained the notice on the ground that it was within five years, impliedly holding that the purported action was under the proviso to Section 11-A of the Act. There is no dispute that the show-cause notice cannot be sustained under Ss. (1 of