Judgment:
1. Miscellaneous application for change of name of the appellant which is supported by the Court order is allowed. Registry to make necessary changes in the name of the appellant in the records.
2. The issue involved in this appeal is whether in quantifying the extent of relief available under Notification 198/76 relating to reliefs for production in excess of the base period clearances, the effective duty should be arrived at before the benefit of proforma credit is applied or after such benefit is taken into account. As explained by the learned Counsel for the appellant, the products manufactured by them, namely cold rolled strips from hot rolled strips attracted effective duty rate of Rs. 650/- PMT in terms of Notification 153/77. Notification 198/76 permitted the manufacturers relief to the extent of 25% of the effective duty for the goods produced in excess of the base period clearance. Since the appellant was using either excise duty paid indigenous goods or countervailing duty paid imported goods, benefit of proforma credit under Rule 56A to the extent of such duty paid on the materials used was being availed of. Appellant paid duty on the goods in question by first deducting the 25%, availing of the benefit of Notification 198/76 from the duty rate of Rs. 650/- PMT and the duty so arrived at was paid partly by debit to PLA and [partly] by debit to their RG 23 Pt. II account. Show cause notice was issued by the Superintendent of Central Excise alleging that the method of calculation adopted by them was incorrect. They were asked to show cause why the duty should not be recovered from them by redetermining the duty amount leviable by deducting proforma credit amount from the duty leviable with reference to ' Notification 153/77 and thereafter on the net duty applying the 25% deduction in terms of Notification 198/76. The demand of duty as proposed in the show cause notice was confirmed by the Additional Collector which has led to the present appeal. Learned Counsel for the appellant stated that he has not been able to lay his hands on any reported decision on merits in respect of such a dispute. However, he submitted that the longer period of limitation was not available to the department as there was no suppression or misstatement on their part in calculating the duty in the manner they did. More importantly, there was no allegation in the show cause notice about the existence of any factors or suppression or misstatement or fraud or intent to evade duty which had led to the alleged short levy. He referred to various decisions rendered by the Apex Court on the question of non-applicability of the extended time limit in the absence of an allegation about the suppression, wilful misstatement etc. including a very recent judgment in the case of Kaur & Singh v. Collector of Central Excise, New Delhi reported in 1997 (94) E.L.T. 289. He pleaded that the appeal may be allowed.
3. Heard Shri D.S. Negi, learned SDR who argued in support of the impugned order.
4. We have considered the submissions and perused the record. We find that the show cause notice issued by the Superintendent under Rule 10 which was the provision applicable at the relevant time merely referred to the incorrect calculation of duty by the appellant. Even assuming this allegation was correct, it did not constitute an act of suppression or wilful misstatement or fraud on the part of the appellant and the alleged short levy was not due to any such factor. In the circumstances, the plea of limitation urged by the learned Counsel for the appellant merits acceptance. We held accordingly and set aside the impunged order. The appeal is allowed.