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TMI Blog1999 (9) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise authorities, the appellants, which had been approved under the provisions of Rule 173B of the Central Excise Rules, 1944. The approval classified the NES yarn under old Tariff Item 19-I(2)(a)(2)(e). On 28th September, 1977, a notice was issued by the Excise authorities to the assessee to re-open the assessment for the period February, 1977 to May, 1977. The reason for so doing was that the NES yarn ought to have been correctly classified under old Tariff Item 19-I(2)(F). A demand for differential duty was made. A second show cause notice was issued by the Excise authorities to the assessee on 18th November, 1977 for the period 1st June, 1977 to 17th June, 1977. The assessment for this period was sought to be re-opened for the same re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set out : "10. Recovery of duties not levied or not paid, or short levied or not paid in full or erroneously refunded. - (1) Where any duty has not been levied or paid or has been short-levied or erroneously refunded or any duty assessed has not been paid in full, the proper officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid, or which has been short-levied, or to whom the refund has erroneously been made, or which has not been paid in full, requiring him to show cause why he should not pay the amount specified in the notice." A proviso to the above increases the period of six months to five years where there has been fraud or the like on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y." 6It is the submission of the learned Additional. Solicitor General that the Tribunal was in error in the view that it took; that, by reason of Rule 10, the reclassification of the NES yarn would operate retrospectively and that, therefore, the assessee was liable to pay excise duty on the basis of the modified classification list for the period that commenced six months before the date on which the reclassification was made. 7In support of the case of the Excise authorities is. the judgment of this Court in Ballarpur Industries Ltd. v. Asstt. Collector of Customs & Central Excise and Ors. 1995 (76) E.L.T. 499 (S.C.) = 1995 Suppl (3) S.C.C. 429. Since it makes reference to a judgment of a Bench of two learned Judges that tooks a contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries (supra) decided by a Bench of three learned Judges, the observations in the judgment in Rainbow Industries were "confined to the facts of that case". The Bench placed reliance upon Rule 10 and held that, on a plain reading of that provision as also of Section 11A, the show cause notice "which could be issued within the time limit prescribed under the relevant provision could only be in relation to the duty of excise for a period prior to the issuance of show cause notice. There could be no reason for the issuance of a show cause notice for the period subsequent to the notice as in that case the necessary corrective action could always be taken. But Rule 10 with which we are concerned as well as Section 11A to which a reference is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the classification was mooted, the earlier classification would operate. 11Rule 173B deals with classification lists. It. entitles the proper officer of Excise to make such inquiry thereon as he deems fit and requires him to approve the list only thereafter, and that with such modifications as are considered necessary. The assessee must determine the excise duty that is payable by him on the goods he intends to remove in accordance with the approved classification list. Sub-rule (5) provides for modification of an approved classification list. 12.Rule 10 is a provision for recovery of duties that have not been levied or paid in full or part. So far as is relevant for our purposes, it provides that where any duty has been short-levied, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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