K. Sankararaman, Member (T)

1. This is an appeal filed by the Collector of Central Excise, Calcutta-II challenging the decision of the Collector of Central Excise (Appeals), Calcutta whereby he allowed the appeal filed before him by M/s Remington Rand of India Ltd., who are the respondents in the present proceedings, and set aside the demand for a sum of Rs. 7067.10 confirmed by the Assistant Collector of Central Excise, Howrah South Division in terms of Rule 571 of the Central Excise Rules, 1944. The Collector (Appeals) allowed the appeal and set aside the Assistant Collector's order on the limited ground of limitation as the demand for the deemed credit availed by them in March, 1986 and April 1986 was issued only in April, 1987.

2. In the appeal before this Bench it has been submitted that the credit wrongly availed by the assessee had been correctly ordered to be realised from them by the Assistant Collector under Rule 571 which provision had no time-limit built into it for issue of the notice, at the material time. Only subsequently, in terms of Notification No. 28/88, dated 6-10-88, the time-limit factor had been inserted in Rule 571. Hence the notice was not time barred as wrongly held by the Collector (Appeals). Further, the question of limitation was not raised by the assessee at any stage during adjudication proceedings. Hence this point could not have been raised at the appeal stage and the Collector (Appeals) should not have considered the said plea of limitation. It has, therefore, been pleaded that the impugned order of the Collector (Appeals) may be set aside and the order of the Assistant Collector restored.

3. When the appeal was called, Shri A. Choudhuri, Departmental Representative appeared for the appellant Collector and Shri S.K. Poddar, Consultant and Shri N.N. Kapoor, Law & Administrative Officer of the respondent company appeared for them. Shri Choudhuri, learned D.R. reiterated the points raised in the appeal and pleaded that the appeal may be allowed.

4. In reply, Shri S.K. Poddar, learned Consultant referred to the submissions made by them in the Cross Objection. He relied upon the following decisions in support of their contention that the time-limit laid down for issue of notice for duty short levied or non-levied will hold good for reversal of credit of duty alleged to have been wrongly availed:

(1) Zenith Tin Works Pvt. Ltd. v. Union of India -MANU/MH/0178/1984 : 1986 (23) ELT 357 (Bombay)

(2) Premier Tyres Limited v. Collector of Central Excise, Cochin -MANU/CE/0105/1986 : 1986 (26) ELT 42 (Tribunal)

(3) S.M. Energy Teknik & Electronics v. Collector of Central Excise -MANU/CM/0042/1989 : 1989 (42) ELT 700 (Tribunal)

On the question raised in the appeal that the plea of limitation had not been taken by them at the adjudication stage and hence it was not open to them to have raised it at the appeal stage, Shri Kapoor submitted that this is a question of law and can be raised by them in the appeal. It was, therefore, pleaded by them that the appeal may be dismissed.

5. I have considered the submissions made by both the sides. The amount of credit sought to be reversed and recovered by the demand is only Rs. 7067.10 which being less than Rs. 10,000/-, it would have been within the Tribunal's right not to admit the appeal in terms of the second proviso to Section 35B(1) of the Central Excises & Salt Act, 1944. However, considering the principles of law raised in the appeal, the appeal has not been shut out at the threshold stage but taken up for decision on the questions whether the Collector was right in considering the fresh plea of time-limit action advanced by the present respondents in their appeal before him and secondly whether the time-limit laid down under Section 11A of the Central Excises & Salt Act, 1944 would apply to the present case which had been decided by the Assistant Collector under Rule 571 as it stood prior to its amendment on 11th October, 1988.

6. I find no support for the pr