Jyoti Balasundaram, Member (J)

1. All three appeals involve common issues and are hence disposed of by this common order.

2. The issues for consideration in these appeals are :-

(1) Whether "Phenol LB" is a drug, eligible for the benefit of exemption from duty in terms of Notification No. 234/82, dated 1-11-1982.

(2) Whether the demand of Central Excise duty on "Phenol LB" falling under item No. 68 of the erstwhile C.E. Tariff during the period from 1-3-1983 to 16-3-1985 is barred by limitation.

3. E/A 3197/88-C. - The facts of the case are as follows :-

The appellant, a Govt of India Enterprise, is the manufacturer of Phenyl under the name "Phenol LB" in its factory in West Bengal under drug licence issued by the Directorate of Drug Control, Govt of West Bengal. After introduction of Tariff Item 68 in the I Schedule to CESA 1944, with effect from 1-3-1975, the appellants had filed classification lists from time to time, claiming classification of Phenol LB as drug and the benefit of exemption under Notification 55/75, dated 1-3-1975 as amended, or Notification 104/82, dated 28/2/1982 or Notification 234/82, dated l-4-1982, as the case may be. The appellants had been clearing the product since 1-3-75 without payment of duty by virtue of the above mentioned notifications and as approved by the proper CE officer on the classification lists filed. The monthly RT-12 returns submitted were also approved finally.

4. A show cause notice was issued to the appellants on 19-2-1988 (and corrigendum dated 18-3-88) demanding duty of Rs. 39,53,801.11 on Phenol LB, a disinfectant liquid-manufactured and cleared during 1-3-1983 to 16-3-85 without payment of duty. The adjudicating authority denied the benefit of Notification 234/82, dated 1-11-82 holding that Phenol LB is not a bulk drug and medicine, n.e.s. as indicated in Serial No. 21 of the Schedule to the Notification, in view of explanation I appended thereto. He also held that demand was not hit by limitation, as there was misdeclaration of goods in the classification list filed by the appellants and hence invocation of the extended period of limitation under Section 11-A was justified. Aggrieved by the order of the CCE, dated 20-7-1988, the appellants have preferred this appeal.

5. E/A No. 3190/88-C. - The period in dispute in this appeal is from 1-11-1982 to 28-2-1983 and the duty demand is Rs. 5,97,785.36, the date of the demand show cause notice being 23-11-87.

6. E/A 3501/88-C. - In this appeal, the appellants are aggrieved by the order of the Collector (Appeals) dated 28-3-1988 confirming the order of the Assistant Collector dated 9-12-1987 approving classification of Phenol LB under T.I. 68 but disentitling the appellants to the benefit of Notification 234/82, on the ground that the product is a disinfectant and not a drug.

7. We have heard Shri K.K. Banerjee, learned advocate for the appellants and Shri A.S. Sunder Rajan, learned JDR for the respondent.

8. Learned counsel takes us through the several classification lists filed by the appellants. When the matter was taken up for hearing on 12-9-89 the Bench felt that it should peruse the original of classification list No. 1/83 effective from 1-3-83 filed by the appellants and on the record of the Department. In particular, the Bench wished to peruse the list of "all other goods not elsewhere specified" attached to the classification list and the contents thereof. The DR was directed to secure this document from the Collector and produce it on the next hearing date. When the matter was taken up for hearing on 9-1-1990, the DR was not in a position to produce the concerned classification list and hence the Bench proceeded with the copy of the classification list produced by the appellants which bears the signatures of the Superintendent and the Assistant Collector of Central Excise.

9. In the approved classification list operative with effect from 1-3-1975, Phenol is shown in item No. 2 (a). In the approved classification list operat