1. The facts of the case have been stated in brief in the opening paragraph of the Order-in-Appeal challenged before us by the Appellants. For proper appreciation of the facts, relevant portion of the impugned order is reproduced below :- "The appellants are the manufacturers of vegetable products falling under T.I. 13. Two products, viz., "Soap Stock" and 'Spent Earth' classifiable under T.I. No. 68 were obtained during the manufacturing process of Vegetable Products which the appellants had cleared without payment of duty. The appellants had also not obtained Central Excise Licence for the manufacture of these products. Therefore, in respect of the period 12-3-1976 to 31-7-1977 two show cause-cum-demand notices dated 24-11-1977 were issued to the Appellants demanding duty under Rule 10 of Central Excise Rules, 1944, totally amounting to Rs. 5,360-75, which the Assistant Collector had confirmed." 2. The Collector of Central Excise (Appeals) upheld the order of the Assistant Collector. While doing so, he has observed that Soap Stock and Spent Earth are two products commercially known to the Trade by their names and are different from the raw materials. Since these products have distinctive character and commercial use of their own different from that of raw-materials, which fact has not been disputed by the appellants, the appellants were required to obtain Central Excise Licence for the manufacture of these products and also follow all the necessary Central Excise Procedure. Collector (Appeals) has held that the products were liable to Central Excise duty under Item 68 of the Tariff. As regards the question of limitation of demand notice, the Collector (Appeals) has held that as there was no initial assessment, the duty not paid by the appellants is recoverable under Rule 10-A, as existed during the material period and not Rule 10. Under Rule 10-A no limitation of time to recover duty has been prescribed. He has also observed that according to the several decisions of the Court the demand is not vitiated because of the invoking of the wrong rule in the Show Cause Notice. Collector (Appeals), therefore, held that duty demanded by the Show Cause Notice dated 24-11-1977 in respect of the period 12-3-1976 to 31-7-1977 was payable by the appellants and demand cannot be treated as time barred.
3. When this matter came for hearing before us, none appeared for the appellants and Sh. Shishir Kumar, learned S.D.R. appeared for the respondent. The appellants, however, submitted written arguments.
Today's hearing was fixed in the presence of Sh. Subhash C. Vatsain who appeared for the appellants in hearing on 22-1-1987. Appellants are, therefore, aware of today's hearing, but they have neither appeared for hearing, nor have sent any request for adjournment. We have, therefore, asked the learned S.D.R. to argue for the respondent. We have heard his arguments.
4. The contention of the appellants in the written arguments submitted on 22-1-1987 is that Show Cause Notice was issued on 24-11-1977 for the period from 12-3-1976 to 31-7-1977 under New Rule 10 of the Central Excise Rules. This Rule came into effect from 6-8-1977. The demand relates to the period when old Rules 10 and 1G-A were in operation.
They have stated that since old Rules 10 and 10-A were both deleted and substituted by New Rule 10 and 10-A with effect from 6-8-1977, duty could not be demanded under the New Rules on 24-11,-1977. This contention of the appellants is not acceptable to us. It was already held by the larger Bench of this Tribunal in the case of Atma Steels Pvt. Ltd. and Ors. v. Collector of Central Excise, Chandigarh and Ors., reported in 1984(17)-ELT-331-(Tribunal), that for issue of a show cause notice either for short levy or non-levy, recourse can be had to the provisions as prevailing at the time of initiation of proceedings. This decision of the Tribunal took into consideration the judgment of Allahabad High Court reported in 1982 (10) ELT 201 (Allahabad) on which the appellants have placed reliance. We do not have any reason to differ from the decision already taken on similar point by Larger Bench of this Tribunal. Following this judgment of the Tribunal, we uphold the impugned order and dismiss the appeal.