1. M/s. Tata Iron Steel Company Ltd., Jamshedpur had filed a Revision application to the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi, being aggrieved from Order No. 71 of 1982 dated 23rd day of March, 1982 passed by the Central Board of Excise and Customs, New Delhi. After coming into existence of Tribunal, the said Revision application was transferred to the Tribunal under Section 35P of the Central Excises and Salt Act, 1944 to be disposed of as an appeal.

2. Briefly the facts of the case are that M/s. Tata Iron Steel Company, Ltd., Jamshedpur manufacture coke from coal. During the course of decarbonisation of coal, coke oven gas is produced. The Revenue authorities during the scrutiny of the records had found that the appellant had supplied coke oven gas to M/s. Indian Tube Company Ltd., Jamshedpur from 1st March, 1975 to 31st July, 1979 without payment of duty. A Show Cause Notice was issued to the appellant vide C. No. 1730/79/1076, dated 19th September, 1979. In the said show cause notice, it was alleged by the Revenue that the assessee had contravened the provisions of Rules 9 (1), 173-B, 173-C and 226 of the Central Excise Rules, 1944 inasmuch as he had removed 156.87 million cubic metre of coke oven gas assessable under Tariff Item 68 to M/s. Indian Tube Company Ltd., Jamshedpur between 1st March, 1975 to 31st July, 1979 without payment of duty. It was further alleged that they had not submitted any classification list or price list for the above commodity. It was also alleged that the assessee had failed to maintain accounts and removed the goods without observance of Central Excise procedures. The assessee was asked to show cause to the Assistant Collector of Central Excise, Jamshedpur why duty should not be recovered from them and why penalty should not be imposed on them under Rules 9(2), 173Q and 226 of the Central Excise Rules, 1944. In all, four demands amounting to Rs. 11,63,962.77 were issued on this account. In addition, one demand of Rs. 1,72,503.17 was also issued for the gas consumed within their factory during 1st March, 1975 to 29th April, 1975. The appellant had sent a reply dated 30th October, 1979 and had stated that

(a) There was no contravention on their part part of any provisions of the Central Excises and Salt Act, 1944 or the rules made thereunder as alleged in the above show cause notice.

(b) Coke oven gas is released during the course of carbonisation of coal while manufacturing coke. Coke oven gas was always declared by the Company in the classification list as "Particulars of other goods produced or manufactured and intended to be removed by the assessee". Therefore, the goods in question had not been removed without the knowledge of the excise authorities. In 1975, when T.I. 68 was introduced, while submitting the classification list, they continued to describe this item under "Particulars of other goods produced or manufactured and intended to be removed by the assessee."

(c) Coke oven gas comes out during the course of carbonisation of coal. No electric power is used in the process of carbonisation. Therefore, this product is exempt from payment of duty as "Manufactured without the aid of power" under Notification No. 179/77, dated 18-6-1977, read with Notification No. 105/76, dated 16-3-1976.

(d) There is no contravention of Rule 173B inasmuch as the Company had already declared coke oven gas in the classification list as stated above.

(e) The demand in this case is barred by limitation under Section 11A of the Central Excises and Salt Act, 1944, inasmuch as the demand has been raised after a lapse of six months from the date of cause of action. The proviso to this section is not attracted in the absence of any intention what-so-ever on their part to contravene any provision of law, If the company is compelled to pay duty for the past period, they would suffer irreparable loss because they would not be in a position to recover the duty