V.T. Raghavachari, Member (J)

1. Show cause notice dated 20-1-1982 was issued to the appellants M/s. Mahabir Jute Mills Ltd., calling upon them to show cause why an amount of Rs. 2,43,894.95 paise should not be recovered from them as duty levied during the period April 1976 to 5-6-1979 in respect of laminated jute bags manufactured and cleared by them. On receipt of reply and on adjudication the Assistant Collector under his order dated 10-4-1982 confirmed the demand in respect of the period 24-11-1977 to 5-6-1979 only (Rs. 2,38,904.60 paise), since the demand for the earlier period was barred even under the extended period provided under Section 11A of the Central Excises and Salt Act. The appeal against the same was dismissed by the Collector (Appeals) under his order dated 16-9-1983. This appeal is against the said order.

2. We have heard Shri M. Chandrasekharan, Advocate for the appellants and Smt. Saxena for the Department.

3. The case for the Department is that during the relevant period the laminated jute bags manufactured by the appellants were classifiable under item 68 CET and that the same became exempt from duty under Notification 204/79-CE dated 6-6-1979 only but that the goods had been manufactured and cleared without payment of duty during the period covered by the demand. The case for the appellants is, and has always been, that the goods were classifiable under item 22A CET and were exempt under Notification 53/75-CE dated 20-3-1965 as amended and hence no duty was payable during the relevant period.

4. Shri Chandrasekharan concedes that if the decisions of this Tribunal in the cases of Shriram Jute Mills Ltd. [MANU/CE/0218/1985 : 1986 (23) ELT 446], Birla Jute Manufacturing Company Ltd. [MANU/CE/0187/1986 : 1986 (26) ELT 1032], Innos Watson Co. (P) Ltd. [1987 (9) ETR 363], order No. 902/87-D dated 16-11-1987 in the case of Dalmia Laminators v. Collector of Central Excise, Calcutta MANU/CE/0311/1987 : 1988 (33) E.L.T. 106 (Tri.) and order No. 903/87-D dated 12-11-1987 in the case of Technopak Ltd. are followed, the classification of the subject goods during the relevant period will have to be under item 68 CET. These decisions had followed the ratio of the decision of the Calcutta High Court in the case of Dalhousie Jute Company Ltd., pointing out that there was no other contrary decision of any other High Court. Shri Chandrasekharan, however, points out that recently a Division Bench of the Andhra Pradesh High Court has held in the case of International Packing Industry (1987 Vol. 32 ELT 317) that the proper classification till 5-6-1979 would be under item 22A CET. It is, therefore, his submission that the matter will have to be re-examined and that taking into consideration the change in the tariff entry introduced in 1972 and 1977 we have to now hold, following the decision of the Andhra Pradesh High Court, that the goods were properly classifiable during the relevant period under item 22A CET and exempt under Notification 53/65. On the other hand, Smt. Saxena submits that the classification uphold in the earlier decisions will have to be followed, pointing out that the amendments in 1972 and 1977 were also taken into consideration, in upholding classification under item 68 CET, in the decision in the case of Dalmia Laminators.

5. We are, however, of the view that on the facts and in the circumstances of this case it is unnecessary to go into that issue since we find that the other submissions of Shri Chandrasekharan that the demand was in any event barred by limitation is correct and has to be upheld. As earlier mentioned the demand related to the period April 1976 to 5-6-1979. The show cause notice had been issued on 20-1-1982. The demand could, therefore, be sustained only if the larger period of limitation provided under Section 11A could be invoked. In this connection it should be first noted that the show cause notice contains no allegation as to fraud, collusion, wilful misstatement or suppression