ORDER

D.C. Mandal, Member (T)

1. Brief facts of the case are that the appellants generated electricity in their own plant and also purchased electricity from D.V.C. The electricity generated by them and also that purchased from D.V.C. got mixed up in a common grid before the same was consumed in the appellants' own plant as well as in the township outside the appellants' generating plant. The appellants did not pay Central Excise duty on the electricity generated by them and claimed that no duty was payable by them on the said electricity under Notification No. 52/78-CE, dated 1.3.1978. Under this Notification, electricity was exempted from Central Excise duty provided it was proved to the satisfaction of the Assistant Collector of Central Excise that such electricity was produced by the generating station, Industrial Unit or an establishment, and is subsequently used in such generating station including Auxiliary Plant, if any. A show cause notice dated 2.1.1982 was issued to the appellants asking them to explain why Central Excise duty on electricity consumed during the period from 1.3.1978 to 31.10.1981, should not be recovered under Rule 9(2) and why penalty should not be imposed on them under Rule 173-Q(2) and Rule 210 of the. Central Excise Rules, 1944. The appellants contended before the Collector of Central Excise, Patna, who adjudicated the case, that the electricity consumed by them within the plant was much more than the electricity generated by them in their own plant and as such it should be presumed that the entire quantity of electricity generated by them was consumed within the plant and no portion of the same was supplied in the township outside the plant and therefore the benefit of Exemption Notification No. 52/78-CE, dated 1.3.78 was admissible to them. The Collector of Central Excise, Patna did not accept the contention of the appellants. In the impugned order, he held that the benefit of exemption could not be granted to the appellants on the basis of presumption. As the electricity generated by them got mixed up with the electricity obtained from D.V. C. in a common grid before supply to the plant and township, they should pay duty on the electricity supplied by them for other than industrial uses in proportion to the electricity generated by them and that obtained from D.V.C. in a particular month. In taking this decision the Collector followed the judgment of Patna High Court in a Civil Writ Jurisdiction case in 62 of 1983 of M/s. TISCO In which the High Court held that"...it would be appropriate if the petitioner pays the duty on the electricity supplied by them for other than the industrial uses in proportion to the electricity generated by themselves and that obtained from D.V.C. in a particular month". The Collector, however, confirmed the demand for duty for a period of six months prior to the issue of show cause notice on 2.1.1982 as there was no suppression of facts on the part of the appellants. The Collector directed the appellants to pay the demand under Rule 173-F read with Rule 9(2) of the Central Excise Rules, 1944. They were also directed by the Collector to fulfil other requirements of law and procedures, such as obtaining L-4 licence, submission of classification list etc. The Collector did not impose any penalty on the appellants. The present appeal has been filed by the appellants M/s. SAIL against the said order-in-original of the Collector of Central Excise, Patna.

2. During the hearing before us, Shri Mookherjee, learned advocate argued for the appellants and Smt. Dolly SaxenS, learned SDR argued for the respondent. On merit of the case the learned advocate reiterated the contention of the appellants as raised before the Collector of Central Excise, Patna. The learned advocate also argued that the Department had acquiescence in the non-levy of duty. Therefore, Central Excise duty as payable, should be paid from the date of the show cause notice, I.e. from 2.1.1982. He contended the Collector's decision to demand duty for a period of six months prior to date of show cause notice. In support of his argument, the learned advocate relied on the decisions reported in MANU/CC/0010/1987 : 1987 (30) ELT 538 (Cegat)- in the case of Foods Fats and Fertiliser Ltd. v. Collector of Central Excise, Guntur, 1984-ECR-2164 (Cegat) - (paragraph 61 of the order) in the case of Inarco Limited v. Collector of Central Excise, Bombay and MANU/CE/0162/1985 : 1985 (22) ELT 487 (Tribunal) - (paragraph 35 of the order) in the case of Steel Authority of India Ltd. Durgapur v . Collector of Central Excise, West Bengal, Calcutta.

3. Another argument of the learned advocate was that the Collector's order was a demand for duty. He was not competent to demand duty. He demanded duty under Rule 9(2) which was not correct as Rule 9(2) was not applicable in the present case, there being no clandestine removal of electricity. The correct provision of law for raising demand for duty is Section 11-A of the Central Excises and Salt Act, 1944. Under Section 11 -A the Collector of Central Excise was not the competent authority to confirm the demand. In support of this argument, the learned advocate relied on the decisions reported in (i) MANU/CE/0109/1987 : 1987 (29) ELT 304 (Tribunal) - Order No. 233/87-D, dated 26.3.1987 - in the case of Kuwality Containers (P) Ltd., Bombay v. Collector of Central Excise, Bombay, (ii) MANU/CE/0242/1986 : 1987 (27) ELT 539 (Cegat) - Order No. 954/86-D, dated 11.12.1986 - in the case of Kuwality Containers Pvt. Ltd. v. Collector of Central Excise, Bombay and (Hi) MANU/WB/0246/1982 : 1987(27) ELT 394 (Cal.) in the case of State of West Bengal and Ors. v. Bio Drug Lab. (P) Ltd. (paragraph 31 of the judgment).

4. Arguing for the respondent, Smt. Saxena stated that the reasonable modality for allocating electricity in a situation like this was justified. Collector has followed the decision of Patna High Court in adopting the said modality. She reiterated the Collector's reasoning in support of the impugned order. She also stated that there was no legal bar to go up to six months prior to issue of show cause notice for demanding Central Excise duty under Section 11-A of Central Excises and Salt Act or Rule 10 of the Central Excise Rules, 1944.

5. We have considered the arguments of both sides and have gone through the records of the case. So far as the Collector's decision on merit is concerned, he has followed the judgment of Patna High Court holding that the appellants should pay duty on proportionate basis as indicated earlier in this order. In the facts and circumstances of the case, we are of the view that the modality adopted by the Collector was the most reasonable and justified one in charging duty. The benefit of exemption under Notification No. 52/78, dated 1.3.1978 cannot be allowed on the basis of presumption, as claimed by the appellants. As the electricity generated by themselves within the plant and that obtained from D.V.C. got mixed up before the same was supplied for consumption within the plant and outside the plant in the township, duty would have to be charged on proportionate basis and that is what the Collector has done in this case following the judgment of Patna High Court. Therefore, we uphold the decision of the Collector on merit of the case and reject the contention of the appellants.

6. The learned advocate for the appellants has argued that the duty, if at all payable, should be paid from the date of show cause notice, i.e. from 2.1.1982. In support of his argument he has relied on three decisions, namely, those reported in MANU/CC/0010/1987 : 1987 (30) ELT 538 (Cegat), 1984-ECR-2164 (Cegat) and MANU/CE/0162/1985 : 1985 (22) ELT 487 (Tribunal). The decision reported in MANU/CC/0010/1987 : 1987 (30) ELT 538 (Cegat) is an order of Member (Judicial) of South Regional Bench at Madras of this Tribunal. In that case, following this Tribunal's decision reported in MANU/CE/0162/1985 : 1985 (22) ELT 487, It was held that when classification list was approved, demand of duty was enforceable only prospectively from the date of issue of show cause notice after putting the affected person of notice. In the decision reported in 1984-ECR-2164(Cegat), in paragraph 61 of the said order, this Tribunal held as follows :-

"However, we find justification in the plea made alternatively that in any case in view of the previous stand consistently conveyed to the party, the demand for recovery of duty retrospectively could not be sustained...we, therefore, think that It will be both justified in law, as well as in equity, if the demand for excise duty by reference to T.I. 68 for these products is held enforceable with effect from the date of the Show Cause Notice, i.e. 24.9.1980"

In paragraph 35 of the decision reported in MANU/CE/0162/1985 : 1985 (22) ELT 487 (Tribunal) in the case of . Steel Authority of India Ltd. on which the learned advocate has placed reliance, this Tribunal observed as follows :-

"35. There can be, thus, no disputing the contention of appellants that there was no justification in applying the period of 5 years from the date of issue of show cause notice. What requires consideration is the further contention of appellants that the Excise authorities could not go back even six months from the date of show cause notice assuming that department's stand on classification was correct, because of there being no existence of any fresh reason, for changing the stand as established by the long standing practice, approved by the Department right from the inception of the manufacture of goods in 1962, for 17/18 long years, upto 1979-80, when the last classification list was approved, and till the first show cause notice was given. We find substance in this plea. The Tribunal has held in the case of Inarco Ltd., Bombay, v. Collector of Central Excise, Bombay [1984 ECR 2164(CEGAT) ], that in such a situation, the demand for additional duty by reference to Tl 68 is enforceable only with effect from the date of issue of show cause notice. That was also a case of a long standing practice having been allowed to continue by the Department by means of orders issued and approvals recorded both from the period prior to introduction of Tl 68 as well as subsequent dates; till the issuance of show cause notice in 1980. We feel inclined to adopt a similar view on the peculiar facts of this case, and hold that the demand for additional duty in this case under Tl 68 can be held enforceable only with effect from the date of issue of the first show cause notice, i.e. 28.4.1980."

In the case of Inarco Ltd. (supra), the goods were classified by the Department under Item 16A(3) read with exemption Notification No. 197/67, dated 29.8.1967 since 1967. After more than 13 years, the Department sought to change the classification of the goods from T.I. 16A(3) to T.O. 68, and initiated action to that effect by issue of a show cause notice on 24.9.1980. In the case of Steel Authority of India Ltd. (supra), as it is stated in para 35 of the Tribunal's order quoted above, for about 17/18 years from 1962 upto 1979-80, the classification was approved by the Department. Thereafter, the Department wanted to change the classification. In both these cases, there was long standing practice of assessment under certain Tariff Items, which the Department wanted to change, by issue of show cause notice. In that context the Tribunal held that the demand for additional duty could be enforced prospectively only, from the date of show cause notice. In the present case before us, there was no such long standing practice of assessment. As the facts of the present case are not identical to the facts of the earlier two cases discussed herein and also because this Tribunal, following the judgment of Karnataka High Court reported in MANU/KA/0070/1985 : 1985 (22) ELT 751 (Kar.), has held in a number of cases that a classification list approved by an Assistant Collector can be re-opened and re-assessed under Section 11 -A of the Central Excises and Salt Act, 1944 and duty can be demanded under that Section for a period of six months prior to the issue of the show cause notice under Section 11-A(1), we do not follow the ratio of the earlier decisions of the Tribunal relied on by the learned advocate.

7. According to the provisions of Section 11-A of Central Excises and Salt Act, 1944 (corresponding to Rule 10 of the Central Excise Rules, 1944) demand for Central Excise Duty which has not been levied or paid or which has been short-levied or short-paid can be raised for a period of six months prior to the date of issue of the notice. A view contrary to this, will make the provisions of Section 11-A of the Act redundant. The question whether the classification approved by the Assistant Collector could be re-opened by him, was considered by Karnataka High Court in the case of Shyam Sundar U. Nichani v. Assistant Collector of Central Excise, Bangalore and Anr., decided on 20.9.1985 and reported In MANU/KA/0070/1985 : 1985 (22) ELT 751 (Kar). It was held by the Hon'ble High Court that withdrawal of approval of the classification list was not a review by the same officer and, therefore, a classification list approved by the Assistant Collector could be re-opened and re-assessed under Section 11-A of the Central Excises and Salt Act, 1944. It was also held that Section 11-A of the Central Excises and Salt Act is not only a recovery provision, but it enables the original authority to re-open the classification and re-assess the goods. This Tribunal has followed the judgment of Karnataka High Court in a number of cases, including the cases of (i) M/s. Malwa Vanaspati and Chemical Company v. Collector of Central Excise, Indore in Appeal No. ED/SB/1155/83-C (vide order No. 296/1988-C, dated 23.3.88) and (ii) Collector of Central Excise, Guntur v. Sudhakar Litho Printers In Appeals No. ED/SB/287/83-C and Ors. (vide order No. 360 to 364/1988-C, dated 19.4.1988), and has held that the approved classification list can be re-opened and demand for duty can be raised under Section 11-A of the Central Excises and Salt Act, 1944.

The scope and ambit of Section 11-A ibid were examined by Calcutta High Court in the recent past in the case of /. T. C. Ltd. and Anr. v. Union of India and Ors., decided on 24.12.87 and reported in 1988 (Vol. 16) ECC Page68 (Cal.). In paragraph 33 of the judgment, the Hon'ble High Court has observed, inter alia, as follows :-

"33. On point (c). - With regards to the next contention of Mr. Nariman about the scope and ambit to provision of Section 11-A of the Central Excises and Salt Act, 1944, it appears to me that Section 11-A of the said Act provides provision for recovery of duties not levied or not paid or short levied or short paid or erroneous-ly refunded. It is evident that whenever the excise duty has not been levied or not paid or has been short levied or short paid, the power under Section 11-A could be invoked, but before an order is passed, a show cause notice has to be issued, in other words, it is the requirement of law that only after giving a notice and hearing, a party who has not paid proper excise duty, can be made liable to pay the said duty. In this context, reference be made to the provision of Section 11-B of the said Act, which provides claim for refund of duty and on plain reading of Section 11-B of the said Act it appears that any person claiming refund of any duty of excise may make an application for refund of such duty before the expiry of six months. This power under Section 11-B of the said Aet is independent of the case when such refund is allowable as a result an order passed in appeal or revision under the Act. Mr. Nariman referred to the proviso to Sub-section (3) of Section 35-A of the said Act, wherein it was provided that where the Collector (Appeals) is of the opinion (that) any duty of excise has not been levied or has been short levied or short paid, etc., no order requiring the appellant to pay any duty not levied or not paid, short levied or short paid, etc., shall be passed unless the appellant is given a notice within the time limit specified in Section 11-A to show cause against the proposed order. This proviso to Sub-section (3) of Section 35-A of the said Act dearly indicates that it is independent of the provisions of Section 11-A of the said Act and on plain reading of Section 11-A and proviso to Section 35A(3) of the said Act, it is clear that the submission of Mr. Nariman that Section 11-A is a mere machinery Section and cannot be exercised independently but can only be execised in connection with an appeal or revision as provided in Section 35-A or Section 35EE of the said Act is without any substance. Sections 35-A and 35-EE of the said Act merely adopted the period of limitation prescribed under Section 11 -Aof the said Act for the purpose of initiating a proceeding for realisation of duties not levied or short paid in connection with an appeal or revision. Accordingly, in my view, on plain reading of Section 11-A of the said Act, no other interpretation could be given.... The Court's and the Tribunal's duty is to apply rules of interpretation by which it should make sense of the enactment than by opening it to destructive analysis. The Tribunal's view, in my opinion would lead to destructive analysis. The provisions of Section 35A and Section 35EE neither override the provisions of Section 11-A nor it could be said that Section 11A is a mere machinery provision which could not be invoked independently and/or the same could only be invoked in aid of the powers conferred in Section 35A and/or Section 35EE of the said Act. The later sections adopted by reference, only the period of limitation and nothing else. When the language of Section 11-A is clear and the powers conferred in other provisions could be invoked only within the period of limitation mentioned in Section 11-A of the said Act, makes it clear that the provision of Section 11A is an independent code/or provision for the purpose of recovery of the excise duty short paid and short levied. In my view, if the interpretation as sought to be given by Mr. Nariman is to be given in Section 11-A of the said Act, it would produce a wholly unreasonable result and would also defeat obvious intention of the legislature and further the Court has to do some violence to the words which, in my view, is not permissible ... In my view, when the language of Sections 11-A, 35A and 35EE of the said Act are clear and when they are independent provisions, the scope and ambit of Section 11-A cannot be curtailed. In my view, Section 11-A provides a com-plete code and is an independent provision and any other interpretation would, In my view, narrow down, limit and/or abridge the scope and ambit of the provision of Section 11-A of the said Act. If the provision of Section 11-A has to be narrowed down defeating the obvious intention of the legislation, this would produce a wholly unreasonable result. In my view, the Court will not interpret a statute which would give rise to a destructive analysis. This is not a case where the provision of Section 11-A is capable of two alternative interpretations. Even Interpreting a revenue statute, the Court should examine the substance and not merely form of the language and should mould the taxing statute so far as possible to achieve the legislative intent and also to meet with the change of social needs. It is no longer the duty of the court to interpret a statute strictly to help the evasion. Its duty is to conrue in a manner which will suppress the evasion of tax or duty. In this particular case, the petitioner was admittedly enjoying a concession and/or exemption and the provision of notification giving concession and/or exemption should not be construed liberally in favour of the taxpayer defeating the purpose of the legislation. While interpreting the provision of law, the Court will try to ascertain the mischief which the statute intended to remedy from the whole of the enactment and the existing state of law. The object of Section 11-A was for recovery of duty short paid or short levied and in my view, the provision of Section 11-A could not be interpreted in a manner which would defeat the very purpose and/or object for which the same is enacted. Accordingly, in my view, this contention of Mr. Nariman must be overruled. In my view, that within the scope and ambit of Section 11 -A of the said Act, the impugned show cause notice was issued rightly."

8. The other legal point argued by the learned advocate is that the Collector was not competent to demand duty under Rule 9(2) as there was no clandestine removal and he has also no jurisdiction to demand duty under Section 11-A of the Central Excises and Salt Act, 1944. We are of the view that there was no clandestine removal in this case. However, duty was demandable under Section 11-A of the Central Excises and Salt Act, 1944. A wrong Rule cited in confirming the demand does not vitiate the demand for duty when all other ingredients for raising demands are fulfilled and duty is legally payable under Section 11-A of the Central Excises and Salt Act. We, therefore, do not agree to squash the demand on the ground that Rule 9(2) of the Central Excise Rules was quoted by the Collector in confirming the demand. In support of his arguments, the learned advocate has relied on paragraph 31 of the judgment of Calcutta High Court reported in MANU/WB/0246/1982 : 1987 (27) ELT 394 (Cal). This paragraph is not relevant to the point at issue raised by the learned advocate. In this paragraph the Hon'ble High Court discussed the meaning of the word mis-statement' and held that it included deliberate mis-statement So far as the orders of this Tribunal reported in MANU/CE/0242/1986 : 1987(27) ELT 539 (Cegat) and MANU/CE/0109/1987 : 1987 (29) ELT 304 (Tribunal) are concerned, they relate to the same case of Kuwality Containers (P) Ltd. v.Col-lector of Central Exc/se, Bombay. In MANU/CE/0242/1986 : 1987 (27) ELT 539 (Cegat), this Tribunal Order No. 954/86-D, dated 11.12.1986 was reported. This order was re-called vide Misc. Order No. 93/87-D, dated 26.3.1987 and thereafter Order No. 233/87-D. dated 26.3.1987 was issued. In this connection, the final order recorded in the Order No. 233/87-D, dated 26.3.1987 In the case of Kuwality Containers (P)Ltd., Bombay v. Collector of Central Excise, Bombay is reproduced below: -

The Order No. 233/87-D, dated 26.3.1987 was reported in MANU/CE/0109/1987 : 1987 (29) ELT 304 (Tribunal). In paragraph 14 of the said order one of the Members expressed his opinion about the Collector's jurisdiction to demand duty under Section 11-A of the Central Excises and Salt Act, 1944. The other two Members of the Bench deciding that case did not, however, express any opinion regarding the Collector's jurisdiction to demand duty unuar Section 11-A as would be seen from paragraph 19 of the order recorded by Shri G. .Sankaran, Viec President and concurred by Shri K. Prakash Anand, Member (Tech.). Paragraph 18 of the said order would show that the Tribunal decided the case on merit only and did not consider the point of jurisdiction of the Collector under Section 11-A. In the circumstances, the decision reported in MANU/CE/0109/1987 : 1987 (29) ELT 304 (Tribunal) does not help the case of the present appellants. Order reported in 1987 (29) ELT 539 (Tribunal) is also not relevant as the same was recalled by Misc.Order No. 93/87-D, dated 26.3.1987 cited supra.

9. No doubt, according to the provision of Section 11-A(2) of the Central Excises and Salt Act, Assistant Collector is to determine the duty payable under Sub-section (1) of Section 11-A. The intention of Sub-section (2) appears to be that the Assistant Collector is the lowest authority in the Central Excise hierarchy who is competent to confirm demand for duty. This, however, does not preclude the Collector of Central Excise from exercising the power of Assistant Collector who is a subordinate officer to the Collector. A superior officer can exercise the power and discharge the function of a subordinate officer. According to the provisions of Rule 6(1) of the Central Excise Rules, the Collector may perform all or any of the duties, or exercise all or any of the powers, assigned to an officer under these rules. The Central Excise Rules framed under the Central Excises and Salt Act, 1944 have the same force as the provisions of the Act. Rules should be considered as part and parcel of the statutory Act under which those are framed. In Maxwell "On the Interpretation of Statutes", 10th Edition, Pages 50-51. it is stated that "Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation". This passage was quoted with the approval by the Hon'ble Supreme Court in their judgment reported in MANU/SC/0312/1960 : AIR 1961 SC 751 (State of Utter Pradesh and Ors. v. Babu Ram Upadhya), in paragraph 23 of the judgment, while considering the scope of provisions of the Police Act and Rules made thereunder. In the case of D.C.W. Limited v. Collector of Central Excise, Madurai [MANU/CC/0055/1987 : 1988 (35) ELT 167 (Tribunal)], South Regional Bench of this Tribunal has held that even prior to insertion of Section 12-A of Central Excises and Salt Act by the amendment of December, 1985, the Collector could by virtue of Rule 6 of the Central Excise Rules, 1944, exercise the powers of his subordinates and even though the Assistant Collector has. been specifically mentioned in Section 11-A of the Central Excises and Salt Act, 1944, there will be no legal infirmity if the Collector exercises the same powers. In arriving at the above decision, South Regional Bench of the Tribunal considered the decisions reported in MANU/SC/0312/1960 : AIR 1961 SC 751 (State of Uttar Pradesh and Ors. v. Babu Ram Upadhya),A985 (26) ELT 611(Tribunal) - (Chetan Engineering Corporation Ltd. v. Collector of Central Excise, Coimbatore), MANU/CE/0192/1984 : 1985 (19) ELT 272 (Tribunal) - (Piya Pharmaceutical Works v. Collector of Central Excise, Meerut), MANU/CE/0109/1987 : 1987 (29) ELT 304 (Tribunal) -( Kuwality Containers (P) Ltd. v. Collector of Central Excise, Bombay) and 1983 ELT 1057 (Cegat) - (S. Kumar and Ors. v. Collector of Central Excise and Ors.). The decision reported in 1983 ELT 1057 is the decision of Larger Bench of this Tribunal in which it was held that apart from the general proposition that statutory rules are part of the Act, in the peculiar scheme of Central Exse Act, the Rules are certainly supplementary as well as complementary to the provisions of the Act. In this connection, findings of the Bench in paragraph - 58,59 and 60 of the said decision are quoted below:-

"58. The peculiar features of the Central Excises Act further strengthen the view that in the setting of this Act, rules were meant to enjoy a very crucial and significant position. A reading of the Act reveals that it only provided a broad framework and almost all details, and very significant ones at that, were left to be filled up by the Rules, came into force along with the Act, so much so that not only none of the officers were defined in the Act and their designation were left to be provided either by the Board or by means of an exercise of powers under the Rules, but even the basic matter of levy and collection of duty as contemplated by the charging Section, was to be determined, by the Rules as indicated by Section 3.

59. We further observe that matters of far-reaching consequences for the subject; namely, that of offences and penalties as provided under Section 9 of the Act, including minimum punishment for six months, are with reference to not only contravention of the provisions of the Act, but also that of Rules and even notifications, and reference to them is interspersed, in almost all the clauses of this Section 9. We further find that Section 37 itself which confers the Rule-making power on the Central Government specifies such important matters to be regulated by the Rules, as determination of the "nearest ascertainable equivalent of the normal price" [Section 37(2) (i) (a)]; defining or specifying the kinds of trade discount [(ib)]; providing for authorities who can discharge the function of assessment of duty [(ic)] provide for remission of duty on any excisable goods, and most significant of all, to exempt any goods from the whole or part of the duty imposed by this Act (Clause xvii), and we do know as a practice that innumerable notifications are being issued from time to time under Rule 8, giving exemption from duty wholly or partially to number of excisable commodities, with the result that whereas excisability is determined by means of the Act and the Schedule annexed thereto, the Rules or notifications issued thereunder can have the effect of totally nullifying the same. Thus, apart from unreserved powers of Rule-making conferred by Sub-section (1) of Section 37, the specification of items by Sub-section (2) is even more revealing of the intention that matters of great consequence were left to be determined, governed and regulated by the Rules.

60. It is, therefore, difficult to comprehend that when Rules have been given such immense scope, and basic functions, how they could be even urged to be considered inferior or secondary to the Act. We have thus no hesitation in saying that apart from the general proposition that statutory rules are part of the Act; in the peculiar scheme of Central Excises Act, the Rules are certainly supplementary as well as complementary to the provisions of the Act, and are to provide for everything which is not covered by the provisions of the Act, and the definition of 'Collector' being one of such omissions; the one given in the Rules has to prevail as having been supplied by them."

In another recent decision vide Order in 21/88-C, dated 8.2.1988, in the case of UP Laminations, Unnao (U.P.) v. Collector of Central Excise, Kanpur, reported in 1988 ETR (Vol.11, Part 6) - Page 661, this Tribunal has held that Collector of Central Excise can exercise the power of Assistant Collector of Central Excise under Section 11-A(2) of the Central Excises and Salt Act, 1944.

10. The demand for duty confirmed by the Collector of Central Excise for a period of six months prior to the issue of show cause notice is legal and valid and the same does not deserve interference by this Tribunal. In the circumstances, the impugned order is upheld and the appeal is dismissed.

11. The appeal is dismissed.

V.T. Raghavachari, Member (J)

12. I have carefully perused the order prepared by Shri D.C. Mandal. I am recording this separate order only for expressing certain views, though, for reasons to be stated hereafter, I am concurring with the order of Shri Mandal as to the disposal of the appeal.

13. As Shri Mandal has observed the decision of the Collector has to be upheld as to the merits of the case in view of the decision of the Patna High Court

14. On the question whether the demand could be enforced with reference to duty payable from the date of notice and not for any anterior period, it has to be seen that the decisions relied on by the learned counsel for the appellants relate to cases where approval had been granted on the classification list with reference to the classification of the product and, subsequently, the classification was proposed to be altered. Such alteration had been proposed with reference to the facts which were available even at the time of original order. It was in these circumstances that it had been held in these cases (and in fact certain subsequent cases also such as Brakes India Ltd. 1987 Volume 14 ECC T157) that in such instances effect can be given, with reference to the altered classification, from the date of the show cause notice only. It should be noticed that in the present instance the entitlement to benefit of Notification 52/78 was not being sought to be denied altogether (as had been claimed in the classification list) but only with reference to certain quantity of electricity not proved to be eligible for benefit under that notification since the same was not being captively consumed. Therefore, it appears to me that for this reason itself the decisions cited by the counsel for the appellants would be of no assistance. On the facts and in the circumstances of this case the demand could certainly be extended to the period of 6 months before the date of notice.

15. On the question whether, during the relevant period, the Collector could have adjudicated on a demand for short levy, I still adhere to the view expressed by me in the case of Kuwality Containers (cited Supra). As pointed out by Shri Mandal, the other members of that Bench did not express any opinion on this issue in that decision and, therefore, my opinion as expressed in the decision could not be said to be that of the Tribunal. As Shri Mandal has pointed out this question came up for consideration before another Bench of this Tribunal In the case of U.P. Laminations (1988 Volume 11 ETR 661). In paragraph 13 of the said judgment the Bench held that the Collector could adjudicate in such Instances and not merely the Assistant Collector. While I hold the contrary view, I respectfully follow the decision of the Bench, as I am bound to do, in the case of U.P. Laminations and therefore agree with the conclusion of Shri Mandal on that point.

16. I, therefore, concur with the order that the appeal is to be dismissed.