R. Jayaraman, Member (T)

1. Appeal No. E/282/89-Bom. is directed against the order of the Collector of Central Excise (Appeals) bearing No. GSM-245/89-RK (File No. V-2(28 CETA) 772/88) dt. 21-2-89.

2. Appeal No. E/735/89-Bom. is directed against the order of the Collector of Central Excise (Appeals) Bombay bearing No. GSM-1564/89-RKT.

3. Appeal No. E/734/89-Bom. is directed against the order of the Collector of Central Excise (Appeals) Bombay bearing No. GSM-1604/89-RKT (File No. V-2(Ch. 32) 3074/88-RKT) dated 31-7-89.

4. Appeal No. E/580/89-Bom. is directed against the order of the Collector of Central Excise (Appeals) Bombay bearing No. SKM-1210/89-B-II (File No. V-2(87 Ch.) 2155/88) dated 5-6-1989.

5. Appeal No. E/452/89-Bom. is directed against the order of the Collector of Central Excise (Appeals) bearing No. SKM-375/89-B-II (File No. V-2(Ch. 72) 2694/88) dated 19-4-89.

6. All the aforesaid appeals have been filed by the Department against the orders of the Collector of Central Excise (Appeals) Bombay noted against each. The aforesaid appeals involving consideration of similar facts and the issue involved being the same, they were clubbed together, heard together and hence proposed to be disposed of by this common order.

7. Shri K.M. Mondal, the learned SDR and Shri C.P. Arya, the learned SDR, for the Department narrated the facts of the case involved in each of the appeals, from which it is evident that the show cause notices have been issued by the Supdt. in all the cases covering the period beyond the normal period of limitation of six months. In two of the cases (Appeal 282/89 and 735/89) show cause notices were issued under Rule 57-I read with Section 11A of the Central Excises and Salt Act. In the case of appeal E/734/89, show cause notice was initially issued under Section 11A of the Central Excises and Salt Act but by a corrigendum issued subsequently, the Rule invoked was Rule 57-I of the Central Excise Rules instead of Section 11A of the Central Excises and Salt Act. In the case of Appeal E/580/89, three show cause notices were issued by the Supdt. under Rule 57-I of the Central Excise Rules read with Section 11A of the Central Excises and Salt Act, out of which two show cause notices one dated 6-1-1988 and another dated 21-8-1988 covering the period April 1987 and June 1987 respectively were held to be time-barred by the Collector of Central Excise (Appeals) and the department has come in appeal only against the findings of the Collector (Appeals) with regard to the aforesaid two show cause notices. The third show cause notice dated 3-8-1987 in respect of this appeal was held to be within time by the Collector (Appeals) and the issue has been remanded back to the Assistant Collector for ascertaining the date of credit, against which the department has no grudge and hence not come in appeal. In the case of appeal No. E/452/89-Bom., show cause notice has been issued under Rule 57-I of the Central Excise Rules.

8. Shri K.M. Mondal, the learned SDR, argued in respect of appeals No. 282/89, 734/89 and 580/89. Shri C.P. Arya, the learned SDR, argued in respect of appeal Nos. 735/89 and 452/89.

9. After hearing the learned SDRs, we did not call upon the other side to argue.

10. The main arguments of the department are that Rule 57-I is an independent provision for recovery of wrongly availed of MOD VAT credit. Prior to issue of Notification No. 28/88-C.E., dated 6-10-1988 no time limit had been prescribed under the aforesaid rule for demanding duty. In all the aforesaid cases, the demands pertain to the period prior to amendment of Rule 57-I. Hence the question of going by the time limit prescribed under Section 11A, as has been held by the Collector (Appeals), is not legally correct and the orders of the Collector (Appeals) allowing the respondents' appeals on this ground are therefore legally not correct and all the aforesaid orders are required to be set aside.

11. We have carefully considered this argument. S