Harish Chander, Member (J)

1. M/s. Spundish Engineers Ltd., Thane, have filed an appeal being aggrieved from the order passed by the Collector of Central Excise, Bombay. Thereafter, the appellants moved an application for the change of the cause title, and vide Misc. Order No. E/Misc./A No. 52/90 B1 dated 24th April, 1990, the cause title was changed. Shri J.S. Arora, learned Advocate with Shri G.K. Arora, Advocate has appeared on behalf of the appellant and pleaded that the demand pertains to the period starting from February 1977 to the financial year 1979-80 is hit by limitation. He pleaded that though there is dispute of assessibility of the goods manufactured by the appellant, but the matter can be disposed of on the basis of the plea of the limitation. He pleaded that the show cause notice was issued on 18th April, 1981, and there was no allegation of suppression of facts. There was no suppression on the part of the appellant in the show cause notice. He pleaded that the demand is hit by limitation as there was no suppression. In support of his arguments, he has referred to the following judgments:

(1) 1984 (17) ELT 331: M/s. Atma Steel v. CCE, Chandigarh.

(2) MANU/SC/0403/1987 : 1987 (32) ELT 234: M/s. J.K. Spinning Weaving Mills Ltd. v. Union of India Others

In the case of J.K. Spinning Weaving Mills Ltd. v. Union of India, the Hon'ble Supreme Court had held that there is no doubt if one is to liable to penalty and confiscation or has to pay duty with retrospective effect from 1944 because of retrospective amendment of Rules 9 and 49 of the Central Excise Rules, 1944, it would really cause-great hardship, but in view of Section 11A of the Central Excises and Salt Act, 1944, there is no cause for such apprehensions as because of this section excise authorities cannot make recoveries beyond a period of six months, the proviso to Section 11A providing for five years limitation is was inapplicable. Similarly, in view of Explanation to Section 51 of the Finance Act, 1982, it was not possible either to impose a penalty or to confiscate the goods for an act of omission which was not unlawful when such act was performed or omission made. Accordingly, Section 51 of the Finance Act, 1982, giving retrospective effect to the amendments of Rules 9 and 49 of the Central Excise Rules, 1944 by Notification No. 20/82-C.E. was neither arbitrary, nor unreasonable and there was no violation of the provisions of Articles 14 and 19(1)(g) of the Constitution of India. And the Supreme Court had held to be legal and valid. Shri Arora has stated that in the present matter the period involved is from 1977 to 1980 and the show cause notice is dated 18th April, 1981, and in any case proviso to Section 11A is not applicable in this case. He argued that Collector (Appeals) observations in respect of the retrospective amendment to Rules 9 and 49 are covered in favour of the appellant by the Supreme Court judgment in the case of J.K. Spg. Wvg. Mills Ltd. v. Union of India reported in MANU/SC/0403/1987 : 1987 (32) ELT 234, and as such the appeal may be allowed.

2. Shri M. S. Arora, learned JDR, relies on the order passed by the lower authorities and pleads for the dismissal of the appeal. Shri Arora, learned JDR, on the aspect of limitation, leaves it to the discretion of the Bench.

3. We have heard both the sides and have gone through the facts and circumstances of the case. Since we have heard only on the point of limitation, for the proper disposal of the appeal reproduction of the show cause notice is very essential. Same is reproduced below:

No. 8 XIII/Spundish/SCN/81/593

Thane dated 18-4-1981.

M/s. Spundish Engineers Ltd.,

D-105, Thane Belapur Road,

Thane-400613.

SHOW CAUSE-CUM-DEMAND NOTICE

Whereas it appears that M/s. Spundish Engineers Ltd., Thane have contravented the provision of Rule 173F and Rule 173G of Central Excise Rules, 1944, inasmuch as they have fabricated and installed the machinery falling under T.I. 68 in their factory premises