G.P. Agarwal, Member (J)

1. This appeal is directed against the impugned order passed by the Collector of Customs and Central Excise, Jaipur dated 12-4-1989.

2. Brief facts so far as material for the purpose of the present appeal are that the appellants were engaged in the manufacture of copper and copper alloys falling under T.I. 26A with the erstwhile Central Excise Tariff at the relevant time i.e. to say from 1-3-1981 to 5-12-1985. A show cause notice C. No. IV(6)133/AE/85/803 was issued to the appellants by the Deputy Collector of Central Excise, Jaipur on 6-3-1986 calling upon them to show cause as to why duty amounting to Rs. 11,83,19,476.94 leviable on the Shells and Blanks for pipes and tubes falling under Tariff Item 26A(4) during the period 1-3-1981 to 31-7-1984 and under sub-item (10) of T.I. 26A w.e.f. 1-8-1984, manufactured and cleared by the appellants from their factory premises during the period 1-3-1981 to 5-12-1985 without discharging their duty liability be not recovered and as to why the seized goods and the land, building, plant, machinery etc. belonging to the appellants be not confiscated and the penalty be not imposed on the allegation that the appellants had contravened the provisions of Rule 9, 52, 52A, 53, 173C, 173F, 226, 56B read with Rule 173Q of the Central Excise Rules, 1944 as detailed out more vividly in the show cause notice. In reply the appellants contested the show cause notice inter alia on the ground that (i) the show cause notice demanding duty in respect of removals from 1-3-1981 to 5-12-1985 after a period of 5 years and therefore it was time barred by limitation under Section 11A of the Central Excises and Salt Act, since there was no fraud, collusion or any wilful mis-statement or suppression of facts and (ii) that the notice has been issued without any authority of law, since the notice of demand after the amendment made on 27-12-1985 ought to have been issued by the Collector and not by the Deputy Collector and therefore, any order passed on a notice in hand issued by the Deputy Collector would be void being without any authority. However, the Collector, Customs and Central Excise, Jaipur vide his impugned order dated 12-4-1989 found the case of the department proved on merits and also partly agreed with the appellants that the demand for duty in respect of shells and blanks removed for further manufacture by the appellants to their ancillary unit during the period 1-3-1981 to 31-7-1984 is hit by limitation of time prescribed under Section 11A of the Act but after holding so further held that the demand in respect of such removals after 1-8-1984 is not hit by limitation of time and in respect of removals for captive consumption in the manufacture of pipes and tubes and hollow rods, the demand for duty for a period of 5 years prior to the service of the notice is sustainable in law. As regards the defence of the appellants that the show cause notice in hand issued by the Deputy Collector was without the authority of law, the Collector of Customs and Central Excise negatived the said defence holding that the draft of the show cause notice issued on 6-3-1986 was actually approved by the Deputy Collector on 20-12-1985 when the relevant provisions of the Act had not been amended and therefore, issuance of the fair copy of the said draft notice in March 1986 when the law has been amended was of no consequence and further that in the initial reply to the show cause notice the appellants did not raise the issue at all and therefore, it was not open to the appellants after a lapse of 3 years to claim that the notice was not sustainable in law. On these findings he confirmed the demand for duty to the tune of Rs. 5,46,69,607.08 and held that the seized pipes and tubes which were provisionally released to the appellants are liable for confiscation and since the same were not available for confiscation, he called upon the appellants to pay forthwith an amount of Rs. 11 lakhs in terms of th