S. Duggal, Member (J)

1. The two appeals, both instituted directly before the Tribunal under Section 35B of the Central Excises Salt Act, 1944 (hereinafter referred to as the Act), arise out of an Order-in-Appeal passed by the Collector (Appeals), Central Excise, Calcutta, on 22.9.1983. The Collector (Appeals), by means of the impugned order, partly upheld contention of the assessee as to entitlement to duty-exemption for a specified period prior to 1.3.1973 and directed that the show cause .notice, issued by Assistant Collector, in so far as it affected the clearances made during the period from 1.4.1970 to 28.2.1973 were concerned, was liable to be withdrawn, and the demand for recovery of the amount of refund given to the assessee was ordered to be modified accordingly. However, clearances effected during the period subsequent to 1.3.1973 were held to be assessable to the rate of duty as stipulated by Notification No. 67/73 dated 1.3.1973 and, thus, duty on goods cleared during 1.3.1973 to 19.7.1973 was held realisable at the rates specified in the said Notification and demand of recovery of the amount of refund allowed for the aforesaid period was upheld.

2. The Collector (Appeals) did not uphold contention of the appellants, while deciding the said appeal, that the demand, made for recovery of the amount of refund alleged to have been erroneously made by order dated 12.10.1981 passed by the Assistant Collector, was barred by time as having been made by means of show cause notices issued after expiry of the period of 6 months from the date of order of refund, inasmuch as the show cause notices had been issued on 17.3.1982 and 13.7.1982; claiming back amount of duty amounting to Rs. 1,06,582.36 for the period relating to 18.6.1977 to 30.6.1980 and a further amount of Rs. 6,67,376/ - for the period from 1.3.1974 to 17.6.1977, respectively. The plea, as to the show cause notices being barred by time, was rejected on the view that the party claimed refund for a consolidated amount of Rs. 10,92,360.16 for the entire period from September 1973 to June 1980, without disclosing the fact that the exemption on the goods has been withdrawn by means of Notification No. 67/73 dated 1.3.1973, which substituted Notification No. 206/63-CE, amended by Notification No. l23/65-CE and that because of this failure to disclose about the change by means of Notification No. 67/73, the party's conduct was tantamount to suppression of material facts, which led to the erroneous refund, and that the party was not entitled to refund, for the period starting from 1.3.1973 and that clearances for the said period may have to be leviable to excise duty at the rates specified in Notification No. 67/73 dated 1.3.1973, and that, because of this suppression of facts, the extended period of limitation was available. Subject to the modification that, for the period from 1.4.1970 to 28.2.1973, exemption was not sustainable, the appeal of the party was rejected.

3. The appeal by the Collector of Central Excise, Bhubneshwar (Appeal No. ED/292/84-B) is directed against partial modification of the order of the Assistant Collector, by Collector (Appeals), inasmuch as refund allowed to the party for the period upto 28.2.1973 had been upheld; the plea being that the party having made a consolidated claim for refund in spite of the change in the notification brought about by Notification No. 67/73, the Collector (Appeals) has erred in holding that the amount of duty relating to the period from 1.4.1970 to 28.2.1973 be paid back to the party. He is contended that no amount had been realised from the party during the said period and, consequently, question of any refund did not arise and that it had been wrongly presumed by the Collector (Appeals) that the amount of Rs. 6,67,367/- related to the period 1.4.1970 to 19.7.1973; whereas it actually related to the period 1.3.1974 to 17.6.1977.

4. Assessee's appeal, on the other hand (Appeal No. ED/2838/84-B) is directed aga