1990 (7) TMI 313

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....ecide the case on merits. Accordingly, we have proceeded to pass this order after hearing Shri S. Chakraborty, learned J.D.R. for the appellant. 3. The question that arises for our consideration in this appeal is whether demand can be raised or not for the period of six months prior to the issue of Show Cause Notice for reclassification. 4. Facts of the case, in brief, relating to the dispute are that respondents M/s. B.H.E.L. manufacture Acetylene Gas for captive consumption within their factory. While filing the classification list for approval they declared that the Gas manufactured by them was of impure nature and would not conform to the ISI Specification. Accordingly, this classification list was approved by the Depart....

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....epartment that respondents have suppressed the facts with an intention to evade payment of duty, to invoke the larger period of 5 years under Section 11A of the Act. The prayer of the Department, as stated in the grounds of Appeal, is to set aside the portion of the order passed by the Collector and to confirm the demand for a period of six months prior to the issue of show cause notice in modifying the approved classification. On the other hand, the respondents are not challenging the issue of classification before us either by way of Appeal or by Gross objections. Hence only point to be determined in this case is whether demand could be retrospective or prospective from the date of notice for such alternation. 6. During the course....

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.... Brakes India Ltd. v. Collector of Central Excise [1987 (31) E.L.T. 1030]. In that case, on similar facts and circumstances, it was held that when there had been no change in the process of manufacture, nor have the Tariff entry undergone any change during the relevant period, though it was open to the Assistant Collector to go in to the question of classification, the revised classification cannot be made retrospectively applicable, that is, the demand for duty in terms of revised classification can be enforced only from the date of Show Cause Notice and not for any earlier period. Though an inference can be drawn from some of the decisions of the Supreme Court that the operation of the modification could be retrospective by issuing a show....