R. Jayaraman, Member (T)

1. Both the aforesaid appeals are directed against the Order-in-Appeal bearing No. GSM-2009/89-AHD (File No. V-2 (52Ch)13/Ahd/89) dated 5-10-1989 passed by the Collector of Customs & Central Excise (Appeals), Bombay.

2. Appeal No. 847/89 Bom has been moved on behalf of the Collector of Central Excise, Ahmedabad, while the other appeal bearing No. E/772/89Bom has been moved by M/s Mihir Textiles Ltd. against the same order of the Collector of Customs & Central Excise (Appeals).

3. Since both the appeals are against the same order and the facts and issues involved covered by the single order were argued together and hence disposed of by this common order.

4. Shri K.M. Mondal, the Learned S.D.R., on behalf of the appellant-Collector, gave the brief facts relating to their appeal as below:

5. The Assistant Collector of Central Excise, adjudicated 19 show cause notices issued for the purpose of recovery of duty on yarn captively consumed by the respondents mills during the various periods in the years 1981, 82 and 83 for a total amount of Rs. 4,69,85,529.29. The question of liability to duty in respect of yarn captively consumed in the composite mills was finally decided by the Supreme Court in the case of J.K. Spinning and Weaving Mills Ltd. & Another v. Union of India & Others reported in MANU/SC/0403/1987 : 1987 (32) ELT 234 (SC) in favour of the Revenue holding that the amendment carried out in Rules 9 and 49 and retrospective validity of the said amendment brought out by Sec. 51 of the Finance Act, are valid. However, the Supreme Court did not accept the contention of the Learned Attorney General that the demands could be issued for periods beyond six months but held that all the demands should be within the purview of Sec. 11A of the Central Excises and Salt Act, 1944 and Sec. 51 of the Finance Act, 1982 cannot over-ride the provisions of Sec. 11A of the Central Excises and Salt Act. The Supreme Court, while disposing of a group of appeals including the appeal of the respondents in the case of Rohit Mills Ltd. v. Union of India & Ors. reported in 1988 (18) ECR 17 (SC) directed that in cases where notices under Sec. 11A of the Central Excises and Salt Act, have been served and the claims do not cover for any period beyond six months from the respective dates of the notices, the Government would be entitled to realise the dues and in the case of dispute as to whether notice under Sec. 11A of the Central Excises and Salt Act had been issued or not, the Assistant Collector will decide the issue and in cases where notices are yet to be issued, the Department would be entitled to do so but the same should not go beyond six months. In pursuance of this direction, the Assistant Collector, after considering the representation from the respondents, passed the order dated 5-7-1988 confirming the demands raised under 19 show cause notices for the total amount as mentioned above. The respondent mills went before the Gujarat High Court against the aforesaid order of the Assistant Collector. The Gujarat High Court was pleased to remand the case back to the Assistant Collector with a direction to give the respondents a personal hearing and to pass orders. Thereafter, the Assistant Collector, after giving personal hearing, passed the order dated 22-11-1988 confirming the demands. The respondent mills went in appeal before the Collector (Appeals) alongwith a request for staying recovery of the dues adjudicated by the Assistant Collector. The Collector (Appeals) rejected the stay petition and directed the respondent mills to deposit the amount as a pre-condition for hearing the appeal, against which they again moved the Gujarat High Court and got the direction to the Collector (Appeals) for entertaining the appeal on merits without pre-deposit. The Collector (Appeals), thereafter, considered the appeal on merits and passed the order on 3-10-1989, issued on 5-10-1989. The aforesaid order of the Collector (Appeals) direct