V.T. Raghavachari, Member (J)

1. The appellants, M/s. Ess Ess Kay Engineering Co. (P) Ltd., are manufacturers, amongst other things, of electric lamp holders. During the period 18-6-77 to 6-10-77, they cleared such lamp holders on payment of Central Excise duty at 2% under TI 68 CET. Later on a notice dated 27-12-78 was issued to them to show cause why differential duty should not be demanded from them as the said lamp holders were classifiable under TI 61 CET. After they had replied, the Assistant Collector of Central Excise, Jallandhar under order dated 20-5-80 dropped the demand on the basis that the same was barred by time. The Collector of Central Excise, Chandigarh issued notice for review of the said order under Section 35A of the Central Excises and Salt Act. After receipt of the reply the Collector by order dated 6-12-80 set aside the order of the Assistant Collector and vacated the same and confirmed the demand raised earlier. It is against the said order that the appellants preferred a revision petition to the Government which, on transfer, is now before us as an appeal.

2. We have heard Sri V.K. Agarwal, Advocate, for the appellants and Shri V. Ohri, SDR, for the department.

3. On the question of classification, Sri Agarwal stated that the contention for the appellants is that the subject goods were classifiable under TI 68 CET only and not TI 61 CET, but that in view of other decisions of this Tribunal on the said question he would not make further submissions except to reiterate that classification should be under TI 68 only (that is to say) that he pressed for classification under TI 68 but that he would not like to take further time over such an argument as this Bench is bound to follow the earlier decisions for classification under TI 61.

4. At an earlier hearing Sri Agarwal had filed two applications dated 4-1-86, one seeking leave to raise additional grounds, and the other seeking leave to introduce additional evidence. By order dated 6-3-86 the Bench declined permission for introduction of the affidavits (enclosed with the second of the two applications) by way of additional evidence, but permitted introduction of two letters (one dated 31-12-85 from the appellant to the Superintendent, and the second dated 1-1-86 being the reply by the Superintendent) as additional evidence. The other application for raising an additional ground was allowed.

5. The reason for making the application to raise an additional ground was as follows : The Assistant Collector in her order had dropped the demand on the ground of time bar. This was on the basis that while the demand related to the period 18-6-77 to 6-10-77, the notice was issued on 27-12-78, and was accordingly barred by time since the fact of manufacture of the lamp holders by the appellants, including payment of duty at the lower rate, was known to the department. The Collector in his order under review had held :

"It is not denied by the party that the assessment of lamp holders was provisional under Rule 9B of the Central Excises Rule 1944".

He had then held that as such provisional assessments were finalised on 13-12-78 only the demand was not barred by time. In preferring their revision application against the said order the appellants had mentioned in para 4 of their revision petition that "the department did not agree to it and as such provisional assessment as provided under Rule 9B of the Central Excise Rule 1944 were resorted to". The contention of Sri Agarwal was that the appellants due to mistaken notion of the legal position did not realise that the requirements of Rule 9B had not been satisfied and, therefore, there was really no provisional assessment and that the appellants became aware of the same only recently. It is in these circumstances that an additional ground was sought to be raised to the effect that the Collector had erred in determining the relevant date under Rule 10 as 13-12-78. As earlier mentioned, the petition to raise this additional