S. P. BHARUCHA, CJ.

( 1 ) THESE writ petitions have been referred for hearing to a division bench. They challenge the vires of Section 4 (4x) of the central excise and salt Act, 1944. This challenge is not pressed in this court in view of the decision of a division bench in Manglore chemicals and fertilizers ltd. And others v Assistant Collector of Central Excise, Manglore and others, 1986 (23) elt 48 read with the decision of a full bench in union of India vm/s. Alembic glass industries, ilr1991 Karnataka 1749.

( 2 ) WHAT remains to be considered in these writ petitions is a question upon which there is a divergence of opinion between various high courts.

( 3 ) THE first petitioner was served with notices dated 13th june, 1977 by the super intendent of central excise under Rule 10 of the central excise rules, as it then read, to show cause why the price lists submitted by it under Rule 173-c{3) of the said rules should not be revised and why it should not be required to pay excise duty allegedly short-levied in the sums therein mentioned. The first petitioner showed cause, but the notices were made absolute by the assistant collector of central excise. The first petitioner preferred appeals, which were rejected by the appellate collector of central excise and customs. Its revision application to the government of India met the same fate.

( 4 ) THE show cause notices and the orders of these authorities are under challenge in these writ petitions. The argument is that Rule 10 as it then stood was substituted on 6th august, 1977. Since the proceedings that commenced upon the show cause notices dated 13th june, 1977 had not been completed by 6th august, 1977 when the old Rule 10 was substituted, the proceedings could not be continued, there being no saving clause.

( 5 ) AT the outset, we must set out the Provisions of the old Rule 10, that is, as itread until it was substituted on 6th august, 1977. It read:"recovery of duties or charges short-levied, or erroneously refunded. (1) when duties or charges have been short-levied through inadvertance, error, collusion or misconstruction on the part of an officer, or through mis-statement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owing to any such cause, erroneously refunded, the proper officer may, within three months from the date on which the duty or charge was paid or adjusted in the owner's account-current, if any, or from the date of making the refund, serve a notice on the person from whom such deficiency in duty or charges is or are recoverable requiring him to show cause to the assistant collector of central excise why he should not pay the amount specified in the notice. (2) the assistant collector of central excise, after considering the representation, if any, made by the person on whom notice is served under subrule (1), shall determine the amount of duty or charges due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined within ten days from the date on which he is required to pay such amount or within such extended period as the assistant collector of central excise may, in any particular case, allow". the substituted Rule 10, so far as it is relevant, read thus:"recovery of duties not levied or not paid or short-levied or not paid in full or erroneously refunded. (1) where any duty has not been levied or paid or has been short-levied or eironeously refunded or any duty assessed has not been paid hi full, the proper officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid, or which has been short levied, or to whom the refund has erroneously been made; or which has not been paid hi full, requiring him to show cause why he should not pay the amount specified in the notice: provided that: (a) where any

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