Per K. Sankararaman : M/s. Brite Automotive & Plastics Ltd. (Brite for short, hereinafter) have filed their appeal registered as E/2303/90-NRB against the order in appeal No. 210/CE/APPL/IND/89/1322 dated 2,3.90 passed by the Collector of Central Excise (Appeals), Delhi- whereby %he had rejected-their appeal-filed before him by upholding the decision of the Assistant Collector of Central Excise, Indore that they were not eligible for Modvat Credit in respect of inputs used by them in the manufacture of their final products which had not been mentioned by them in their declaration filed under Rule 57G (1) of the Central Excise Rules, 1944. He had, however, allowed their appeal partly by setting aside "the demand for the period beyond six months from the date of credit". This latter finding has, in turn, been assailed before us by the Collector of Central Excise, Indore. That appeal is registered as E.2429/90-NRB. As both the appeals arise from the same order-in-appeal and as both the appeals were argued together before us by the respective counsels, we are passing this combined order. A miscellaneous application was filed by Brite before the Honourable President of the Tribunal for constitution of larger Bench for deciding the question of jurisdiction as they were aggrieved with the miscellaneous order No. Misc./261/91-NRB dated 26.7.91 holding that the notice issued under Rule 57-1 of the Central Excise Rules after its amendment on 6.10.88 was within the powers of the Superintendent and had been rightly adjudicated by the Assistant Collector.

2. The matter had been considered by the President of the Tribunal. Initially these two appeals had been included in a list of cases referred to the larger Bench. That list was actually of cases on the Customs side on the jurisdiction of Benches to deal with appeals relating to inputs under REP licences. The earlier order dated 21.6.93 of the President which included these cases for the larger Bench reference was withdrawn by him vide his order dated 27.4.94 for these two Excise Appeals. It was also observed by him that it will be proper to constitute a larger Bench only on the recommendation of a Bench hearing the matter. The matter was directed to be listed before the Bench. The appeals have accordingly come up before us for hearing.

3. Shri D.N. Mehta, learned advocate appeared for Brite. A written note of "Additional grounds for final hearing of the-Appeal" dated 11.6.94 was also submitted Shri Mehta reiterated the points submitted by them in their application as well as in their appeal that the notice issued by the Superintendent suffered from lack of jurisdiction as he was not the competent officer to issue the notice when the longer period of limitation is involved. The provisions of Section 11A will automatically come into play which requires mat only die Collector should issue the notice. He referred to the Tribunal decision in Refine Chemicals Vs. Collector of Central Excise, Baroda reported in 1994 (52) ECR 467 and Synpack (P) Ltd. Vs. Collector of Central Excise, Bombay-H reported in 1994 (71) ELT 98.

4. After these submissions on the preliminary issue of applicability of Section 11A and the invalidity of the notice issued by the Superintendent, Shri Mehta proceeded to argue the case on merits. He contended that the non-declaration of the input is not fatal to their availment of Modvat credit. He referred to the following decisions, which, he submitted, would support their case :-

Shri Mehta concluded his arguments with the plea that the appeal may be allowed not only on the