ORDER
D.C. Mandal, Member (T)
1. Two issues to be decided by us in this appeal are (i) whether Amegyl Suspension manufactured by the respondents was eligible for the exemption of central excise duty under Notification No. 116/69-CE dated 3-5-1969 as amended and (ii) whether the demand for duty raised by the Department was barred by limitation.
2. Notification No. 116/69-CE dated 3-5-1969 as amended, exempts Patent or Proprietary medicines falling under Central Excise Tariff Item 14E,
(i) if the medicine contains one or more of the ingredients speci fied in the schedule appended to the Notification; and
(ii) if the medicine contains other than the ingredients specified in the said schedule, such ingredients are pharmaceutical necessities such as diluents, disintegrating agents, stabilizers and preservatives, moistening agents lubricants, buffering agents and such pharmaceutical necessities are therapeutically inert and do not interfere with the therapeutic or prophylactic activity of the ingredient or ingredients specified in the Schedule to the Notification. Against serial Nos. 21 and 6 of the schedule of the Notification the ingredients “Metronidazole” and Di-Iodo Hydroxy Quinoline” have been specified.
3. The respondents filed a classification list No. 3/82-83 dated 22-7-1982 for their P or P medicine Amegyl 60 ml and Amegyl 30 ml claiming exemption of central excise duty under the aforesaid Notification. The main ingredients of the product were :
(i) Metronidazole Benzoate, and
(ii) Di-Iodo Hydroxy Quinoline.
Paragraph 1 of the order-in-original No. V/14E/17/51/82 dated 18.4.1983 passed by the Assistant Collector of Central Excise shows that the respon dents also declared that the other ingredients used in Amegyl Suspension were pharmaceutical necessities. The Assistant Collector has held that Metronidazole Benzoate is not specified in the schedule to the Notification No. 116/69-CE. He has also observed in paragraph 4 of the order-in-original that the molecular formula of Metronidazole Benzoate is C13H13N3O 4 and its molecular weight is 275.27 whereas the Metronidazole’s moiecular formula is different and its molecular weight is 171.2. He has held that Metronidazole Benzoate is different from Metronidazole and therefore the benefit of Exemption Notification No. 116/69-CE cannot be extended to the product Amegyl Suspension. Regarding the question of limitation, the Assistant Collector has held that the classification lists were approved provisionally and the classification list No. 3/82 dated 22.7.1982 was not approved by the proper officer. The Assistant Collector demanded duty of Rs.59,590.30 for the period from 15.11.1979 to 29.10.1982 under Rule 9-B of the Central Excise Rules, 1944.
4. While deciding the appeal filed against the Assistant Collector’s order, the Collector of Central Excise (Appeals), by the impugned order, has set aside the Assistant Collector’s order. Hence, the present appeal before us. Collector (Appeals) has held that the classification lists were not specifically endorsed to the effect that the approval was provisional and was subject to the result of chemical list. There was also no evidence to show that the respondents herein were asked to complete formalities contemplated in Rule 9-B in regard to provisional assessment. He, there fore, has held that in the absence of any findings invoking the proviso to Sub-section (1) of Section 11-A of the Central Excises and Salt Act, 1944, the demand for short-levy of duty for the past clearances should be limited to six months, calculated with reference to the date of receipt of the demand notice by the respondents.
5. On the merits of the case, the Collector (Appeals), following his earlier decision in the order-in-appeal No. 194/83(M) dated 1.8.1983 in respect of a product named Neo-Flagivon Suspension, has held that the use of Metronidazole Benzoate in Amegyl Suspension will not deprive the product of the benefit of exemption Notification No. 116/69-CE. In paragraphs 3 to 6 of the said order-in-appeal, the Collector (Appeals) has observed as follows :-
“3. I have carefully gone through the records, in particular the literature issued by appellants for Medical Profession in respect of Neo-Flagivon Suspension available on the Divisional Office file. As per this literature, Metronidazole, a recent discovery and considered to be a drug of choice in the treatment of Amoeblasis is successfully employed in the treatment of Giardiasis and because of its inherent bitter and metallic taste, Metronidazole has its own limitations in paediatric use and nausea and vomitting after administration has posed a major problem. The literature further adds that with this in view and also keeping in view the high therapeutic efficiency of Metronidazole, a;new ester of the same without the element of bitterness and metallic taste has been successfully developed by appellants and the ester is called Metronidazole Benzoate equivalent to 200 mg, of Metronidazole I.P. in 5 ml. It is further advertised that the suspension has a highly palatable flavoured base without the usual bitter taste associated with Metronidazole and it is ideal for paediatric use.
4. The above reproduction from the literature would indicate that use of Metronidazole as such, without removing its inherent bitter and metallic taste would not render it palatable for therapeutic use and therefore, an ester is formed to make it palatable. In other words, the ester is formed merely to remove the bitterness and metallic taste of Metronidazole and not because ester as such, would have more potent therapeutic value as compared to Metronidazole. The letter of the Chemical Examiner dated 23.2.1980 merely expresses his opinion and this opinion remains unsubstantiated without reference to any authority, or with reference to the results of a chemical test. He has also not explained what is the therapeutic property of Caustic Soda and Benzoyl Chloride. In other words, the Department has not been able to rebut the contention of appellants that Caustic Soda and Benzoyl Chloride are present in Neo-Flagivon Suspension merely as a Pharmaceutical necessity, to make the bitter Metronida zole palatable.
5. This leaves the question of interpretation of Notification No. 116/69. Lower Authority has held that the only active ingredient present in the suspension should be Metronidazole, while the active ingredient present in the suspension is Metronidazole Benzoate. It is obvious from the literature that the active ingredient present in the suspension is Metronidazole only, as otherwise it was not necessary for appellants to indicate in the literature (to reproduce) “Neo-Flagivon suspension containing Metronidazole Benzoate equivalent to 200 mg. of Metronidazole I.P. in 5 ml.” It is thus clear that the only ingredient with therapeutic property in the suspension is Metroni dazole and not.
6. Besides, the words used in the exemption Notification are ingredients specified in the schedule and the word ‘ingredient’ has to be distinguished from the word ‘raw material’. Lower Authority has considered Metronidazole Benzoate as the raw material for Neo Flagivon Suspension. The word ‘ingredient’ in its ordinary sense would mean a component part or an element in a mixture. In this sense of the word also, it is obvious that Metronidazole is an element in Neo-Flagivon Suspension. I have already held that the presence of other ingredients viz., Caustic Soda and Benzoyle Chloride does not add any therapeutic properties to the suspension, since there is no evidence to rebut the contention of appellants that these ele ments are added to remove the bitter and metallic taste of Metroni dazole.”
6. Arguing for the appellant Shri Shishir Kumar has stated that Metronidazole Benzoate is not mentioned in. the Notification. This product is chemically different from Metronidazole which figures in the schedule to the Exemption Notification. The chemical formula of these two products is different. Metronidazole Benzoate is, therefore, not covered by the Notification and the respondents herein have no case on merit. Regarding the question of limitation, Shri Shishir Kumar has stated that the respon dents claimed the benefit of Notification No. 116/69-CE without giving chemical composition/formula of the disputed product in the classification list. The classification list was approved on 18.10.1979 subject to chemical test. Classification list No. 8/79 filed on 8.11.1979 was approved by the Superintendent without any condition, but the classification list No. 9/79 submitted in November 1979 was approved “subject to chemical test” on 14.11.1979. Absence of provisional bond would jeopardise the Govern ment Revenue, but it did not make approval of the classification list final. Further, the respondents did not mention Metronidazole Benzoate in the classification list. There was, thus, a mis-declaration in the classi fication list attracting 5 years’ limitation period. Show cause notice was issued in this case on 7.12.1982 covering the period from 15.11.1979 to 29.10.1982 which is within the time limit of 5 years. The respondents are, therefore, liable to pay duty as demanded by the Assistant Collector.
7. Arguing for the respondents Shri Subramanian has stated that there was no mis-declaration in the classification list. Metronidazole Suspension was declared in the classification list. At page 321 of National Formulary of India, an extract from which has been filed at page 93 of the Paper Book, under Metronidazole Suspension it has been stated that each 5 ml contains Metronidazole Benzoate equivalent to 125 mg of Metronidazoie. Benzoate removes the bitterness of Metronidazole and it has no other therapeutic value. Benzoate does not appear in any pharma copia. As each 5 mi of Metronidazole Suspension contains Metronidazole Benzoate equivalent to 125 mg of Metronidazole, the respondents’ product “Amegyi Suspension” was eligible for the exemption under Notification No. 116/69-CE. The learned Advocate has argued that in the case of Parke Davis (India) Ltd., Bombay v. Collector of Central Excise, Bombay, reported in 1984(15)-ELT-231, this Tribunal observed that the appellants therein were manufacturing Carnoquin (Amodiaquine Hydrochloride), and though amodiaquine hydrochloride was not the samething as amodia quine which was exempted under Notification No.’ 116/69-CE and was the base and active principle haying the therapeutic properties, it was always medically administered as per various pharmacopoeias, as an anti-malarial drug in the form of amodiaquine hydrochloride tablets wherein the hydrochloride was non-active and that there was no other form in which the said substance was administered for the purpose. The Tribunal held in that case that Exemption Notification No. 116/69-CE was admissible to amodiaquine hydrochloride. Regarding question of limitation, Shri Subramanian has argued that show cause notice was issued under Section 11-A without alleging any suppression of facts. The demand for duty was confirmed by the Assistant Collector under Rule 9-B of the Central Excise Rules and no opportunity was given to the respondents to refute the applicability of Rule 9-B. The demand confirmation order passed by the Assistant Collector is not, therefore, sustainable in law. For this argument, Shri Subramanian has relied on the following decisions :-
(i) 1980(6)-ELT-235 (Bombay)
Wimco Ltd. v. Union of India and
(ii) 1983(12)-ELT-533 (CEGAT)
Hydraulics Ltd., Madras v. Collector of Central Excise, Madras
(iii) 1987(28)-ELT-539 (Tribunal)
Albright Morarji and Pandit Ltd., Bombay v. Collector of Central Excise, Bombay
(iv) 1987(28)-ELT-167 (Tribunal)
Collector of Central Excise, Chandigarh v. D.P. Metal Works, Jalandhar.
Shri Subramanian has argued that no provisional bond was executed and the R.T. 12 assessment was final. For provisional assessment, a bond, is a must. In this case, assessment was not provisional longer time-limit of 5 years cannot be applied in this case. For this argument he has relied on the following judgments :-
(i) 1985(22)-ELT-708 (Cal)
Jayashree Textiles & Industries and Ors. v. Collector of Central Excise, Calcutta
(ii) 1985(20)-ELT-102 (Tribunal) Castrol Ltd. Calcutta v. Collector of Central Excise, Calcutta
(iii) 1983(12)-ELT-34 (Mad)
Indian Organic Chemicals Ltd. v. Union of India and
(iv) 1987(27)-ELT-728 (Tribunal)
Usha Martin Industries Ltd., Ranchi v. Collector of Central Excise, Patna.
The learned advocate has also argued that in the show cause notice there was no allegation of mis-statement of facts. The Department had full knowledge of the facts. No extended time-limit is, therefore, applicable. The burden to prove suppression of facts or misdeclaration is on the Depart ment. The Department has not discharged that burden. He has relied on the following decisions in this connection :-
(i) 1987(27)-ELT-477 (Tribunal) Collector of Central Excise, Thane v. Minichem India
(ii) 1987(27)-ELT-334 (Tribunal) Agarwal Brothers Steel Rolling Mills, Bangalore v. Collector of Central Excise, Bangalore.
(iii) 1986(2f)-ELT-697 (Tribunal) Hindustan Polymers v. Collector of Central Excise, Guntur.
(iv) 1984(15)-ELT-243 (Tribunal) Raymond Woollen Mills Ltd. v. Collector of Central Excise, Bombay.
The learned advocate has further argued that the order-in-original does not speak of chemical test. The test report was also not supplied to the respondents. This is one of the reasons why the Collector (Appeals) has decided in favour of the respondent. According to the learned advocate the learned SDR cannot now raise the question that the assessment was provisional as the classification list was approved subject to chemical test. He has relied on the decisions reported in (i) 1984(16)-ELT-341 (Tribunal), Steel Rolling Mills of Bengal Ltd. v. Collector of Central Excise, Calcutta and (ii) 1983-ELT-216 (Bom), D.N. Kohli, Collector of Central Excise, Bombay v. Krishna Silicate & Glass Works and Anr.
8. In reply to the arguments of Shri Subramanian, Shri Shishir Kumar has stated that Shri Rarnanathan, representative of the respondents, during the hearing before the Assistant Collector, waived the claim for a fresh show cause notice invoking Rule 9-B. Now the respondents cannot plead denial of natural justice. He has also argued that they did not suffer from prejudice because of non-supply of chemical examiner’s report.
9. We have carefully gone through the records of the case and have considered the arguments of both parties. On the merits of the case, the dispute is about the ingredient “Metronidazole Benzoate”. The records of the case show that the two main ingredients of the product “Amegyl Suspension” are :-
(i) Metronidazole Benzoate, and
(ii) Di-Iodo Hydroxy Quinoline.
Neither party before us has argued that Metronidazole Benzoate is a pharmaceutical necessity. It is a main and active ingredient in the product Arnegyl Suspension. While Di-Iodo Hydroxy Quinoline is specified in the Notification No. 116/69-CE, Metronidazole Benzoate is not so specified. What is specified at Serial No. 21 of the schedule to the Notification is “Metronidazole”. The question, therefore, arises whether “Metronidazole” is the same as “Metronidazole Benzoate”. In our view, the two ingredients are different and not one and the same because of the following reasons :-
(i) The chemical formula and the molecular weight are different. In paragraph 4 of the order-in-original, the Assistant Collector has stated that the molecular weight of ‘Metronidazole Benzoate is 275.27 whereas that of Metronidazole is 171.2. He has also stated that molecular formula of Metronidazole Benzoate is C13H13N3O4 which is different from molecular formula of Metronidazole. From pages 89 and 91 of the Paper Book filed by the counsel for the respondents, we find that Metronidazole [l-(2-Hydroxyethyl)-2-Methyl~5-Nitroimi dazole] has the chemical formula O2N CH2CH2 OH CH3. Page 91 of the said paper book gives the chemical formula of Metronidazole Benzoate 1-(2-Benzoy)Oxyethyl-2~Methyl-5~Nitro Imidazole] as] O2N CH2CH2OCOC6H5CH3. Chemical formula of the two ingredients are thus different.
(ii) National Formulary of India, page 321,. an extract of which is at page 93 of the Paper Book filed by the respondents, states that each 5 ml of Metronidazole Suspension contains Metronidazole Benzoate equivalent to 125 mg of Metronidazole.
(iii) Respondents herein in paragraphs 4 & 5 of their reply No. AR/1589/82-83 dated 27.12.1982 to the show cause notice stated as follows :-
“The structure and properties of both Metronidazole and Metroni dazole Benzoate are almost identical and the results and effects being the same, Mewtronidazole being bitter in taste, Metronidazoie Benzoate which is tasteless is being used for liquid preparation for the use of children.
The therapeutic end use of both Metronidazole and Metronidazole Benzoate are the same, both being used as Arnoebicide. We submit that the effect, structure and properties and the conditions for the use of Metronidazoie and Metronidazole Benzoate being identical, a differential stand being taken for Metronidazole Benzoate is erro neous.”
Apart from the fact that structure chemical formula and molecular weight of Metronidazole and Metronidazole Benzoate are different, the National Formulary referred to (supra) does not say that two ingredients are one and the same. On the other hand, what is stated in the said Formulary is that Metronidazole Benzoate is equivalent to 125 mg of Metronidazole. This shows that the ingredient used by the respondent is a substitute for Metronidazole but not Metronidazole as such. Reply to show cause notice as extracted earlier also shows that the two ingredients are not the same. In paragraph 4 of the reply, they have stated that structure and properties of two ingredients are almost identical. The mere fact that the two ingredients may have identical results and effects will not make the ingredients one and the same thing. It is also nobody’s case that Metronidazole cannot be used as an ingredient in the medicine and that only Metronidazole Benzoate has got use in the medicinal preparations. From page 95 of the Paper Book submitted by the respondents we find that in Amegyl Capsules manufactured by them two ingredients used were :
(i) Metronidazole I.P. 200 mg.
(ii) Di-Iodohydroxyquinoline I.P. 300 mg.
This shows that ingredient Metronidazole is, as such, used in the prepara tion of Amegyl Capsules by the respondents themselves. The decision of this Tribunal reported in 1984(15)-ELT-231 in the case of Parke Davis (India) Ltd., Bombay v. Collector of Central Excise, Bombay, on which the learned advocate has placed reliance is not, therefore, applicable to the present case since in the said case of Parke Davis (India) Ltd., it was observed that as per various pharmacopoeias amodiaquine was always medically administered in the form of amodiaquine hydrochloride tablets as an anti-malarial drug in which hydrochloride was non-active and there was no other form in which the said substance was administered for the purpose. The present case is also distinguishable from the said case of Parke Davis (India) Ltd., inasmuch as Metronidazole is itself used as an ingredient in the preparation of Amegyl Capsules. Notification No. 116/69-CE does not provide that substitute would also be eligible for the benefit of said Notification. On the other hand, the Notification very clearly says that Patent or Proprietary medicines containing one or more of the ingredients specified in the Schedule appended to the Notification are exempted from duty leviable thereon. Schedule to the Notification specifies only Metronidazole. Metronidazole Benzoate is a substitute of Metronidazole, but it is not the same thing as Metronida zole. In the circumstances, the product Amegyl Suspension, which contains Metronidazole Benzoate as an active ingredient, is not eligible for the. benefit of exemption Notification No. 116/69-CE, as amended.
10. The respondents have contested the demand for duty on the ground of limitation under Section 11-A of the Central Excises and Salt Act, 1944. The duty demand notice was issued to the appellants on 27.11.1982 for the clearances of Amegyl Suspension during the period from 15.11.1979 to 29.10.1982. In the show cause notice, no suppression of facts or mis-statement with a view to evading duty was alleged. In the show cause notice demand for duty was raised under Section 11-A of the Central Excises and Salt Act, 1944. The longer period of time-limit of 5 years under the proviso to Section ll-A(1) of the Act ibid is not, therefore, applicable in the present case. The learned advocate has, however, argued that the demand for duty was confirmed by the Assistant Collector under Rule 9-B of the Central Excise Rules, whereas the show cause notice was issued under Section 11-A and the respondents were not given any opportunity to rebut the applicability of Rule 9-B. He has, therefore, argued that the demand confirmation order of the Assistant Collector was not sustainable in law. In support of his argument he has relied on 4 decisions reported in 1980-ELT-235(Bombay), 1983-ELT-533 (CEGAT), 1987(28)-ELT~539 (Tribunal) and 1987(28)-ELT-167 (Tribunal). We find from the Order-in-originai passed by the Assistant Collector that during the hearing before him, Shri Ramanathan, who represented the respondents herein before the Assistant Collector was told by the Assistant Collector that the classification list had been approved provi sionally and whether a fresh show cause notice was required to be issued bringing out this fact, but Shri Ramanathan stated that it was not nece ssary. Thus, the respondents waived their right to have a fresh show cause notice invoking Rule 9-B of the Central Excise Rules. After waiving the said right, the learned counsel cannot now raise this point and take the plea of denial of natural justice.
11. The learned SDR appearing for the Revenue has argued that assessment was provisional as the classification list was approved by the Superintendent of Central Excise with the qualification “Subject to Chemical Test” although the classification list No. 8/79 filed on 8-11-1979 was approved by the Superintendent without any condition. The next classification list No. 9/79 was approved subject to chemical test on 14.11.1979. According to him, this remark on the classification lists would show that the same were approved by the Superintendent provi sionally, although no provisional duty bond was obtained from the respon dents. According to him, the provisional duty bond is required to be taken for the purpose of securing the Revenue. He has also argued that absence of provisional bond would jeopardise the Government revenue, but it would not make the approval of the classification list as final. As against these arguments, the learned advocate has stated that in the provisional assessment, bond is a must. He has also argued that RT 12 assessment was final in this case. Therefore, assessment was not provisional. The learned advocate has relied on a few decisions, one of which is the decision of this Tribunal in the case of Usha Martin Industries Ltd., Ranchi v. Collector of Central Excise, Patna, reported in 1987(27)-ELT-728 (Tribunal). In the said case, the correspondence beginning with the appellants’ letter dated 22.8.1973 showed that an arrangement was arrived at between the appellants and the authorities to the effect that stock transfers to Depots would be initially assessed on the DGS&D rate contract price and subsequently the assessment would be revised if the actual sale prices ex-depots happened to be higher. The Superintendent’s price approval endorsement was dated 1.11.1974, but with retrospective effect from 1.3.1973. This understanding between the appellants and the Department was formalised into provisional assessment procedure under Rule 9-B of the Central Excise Rules, 1944 when the appellants executed the B-13 bond prescribed in the rule on 19.8.1974. This Tribunal held, in the circum stances, that it was only with effect from 19.8.1974 that initial assessments of stock transfer goods from the appellants’ factory could be said to be provisional in the statutory sense of Rule 9-B. It was also observed by the Tribunal that whatever understanding existed between the appellants and the Department prior to this date would not amount to provisional assessment in terms of the statute. In arriving at the above conclusion, the Tribunal relied upon the decision of Bombay High Court in the case of D.N. Kohli, Collector of Central Excise, Bombay v. Krishna Silicate & Glass Works and Anr., reported in 1983-ELT-216(Bom). The Collector (Appeals) has held that there is no evidence to show that the respondents herein were asked to complete the formalities comtemplated under Rule 9-B in regard to the provisional assessment. He has observed that it was not open to the lower authorities to consider the past assessment as having been done provisionally merely because in his opinion the Superin tendent of Central Excise was not a proper officer ,to approve the classi fication list or that in the classification list the Superintendent merely endorsed “Approved subject to Chemical test”. The Collector (Appeals) has also observed that there is no findings of the lower authorities that samples were infact drawn for chemical test and the results of such chemical test were not disclosed. He has, therefore, not accepted the contention that the assessment was’ provisional and accordingly, he has limited the demand for duty for six months only under Section 11-A of the Central Excises and Salt Act in the absence of invocation of proviso to Sub-section (1) of Section 11-A ibid.
12. The respondents have filed copies of some classification lists and R.T. 12 returns. These reveal the following position :-
(i) Classification list No. 1/79 dated 11.10.1979, vide pages 1 to 4 of the Paper Book filed by the respondents. This was approved by the Supdt. of Central Excise on 11-10-1979 without any reserva tion. Item 2 of the Memorandum of Approval, which relates to provi sional approval/assessment was struck off by the Superintendent of Central Excise while approving this classification list.
(ii) Classification list No. Nil dated nil, vide pages 5 to 8 of the Paper Book. This was approved by the Superintendent of Central Excise on 18.10.1979 with the following remarks : “Approved subject to Chemical Test”. However, there is no indication in item 2 of the Memorandum of Approval that the classification list was approved provisionally.
(iii) Classification list No. 5/79 dated 8.11.79, vide pages 9 to 12 of the Paper Book, was approved by the Superintendent of Central Excise without any qualification. There is no indication in item of the Memorandum of Approval that the approval was given provi sionally.
(iv) Classification list No. 8/79 dated 8.11.1979, copy at pages 13 to 16 of the Paper Book, was approved by the Superintendent of Central Excise on 9.11.1979 without any condition and without indica ting in the Memorandum of Approval that the classification was approved provisionally.
(v) Classification list No. 9/79 dated nil, vide pages 17 to 20, was approved by the Superintendent on 14.11.1979 with the following remarks : “Approved subject to Chemical Test”. It is, however, not stated in the Memorandum of Approval that the approval is provisional.
(vi) Classification list No. 2/81 dated nil, vide pages 45 to 48 of the Paper Book, was approved by the Assistant Collector of Central Excise on 7.4.1981 provisionally.
(vii) The R.T. 12 returns for the months of November, 1979 dated 10.12.1979, December, 1979 dated 9.1.1980, January, 1980 dated 8.2.1980, vide copies of pages 21 to 44 of the Paper Book, were approved by the Superintendent of Central Excise on 20.3.1981 without any indication or qualification that those were approved provisionally.
(viii) The R.T. 12 returns for the months of April. 1981, May 1981, July 1982 and August 1982, vide copies at pages 49 to 84 of the Paper Book, were approved by the Supdt. of Central Excise on 30.4.1983 and 12.8.1983 respectively, provisionally, but the product Amegy) Suspension was not included in these Returns.
We observe from the above that except the two classification lists mentioned at (ii) and (v) above, the were approved without any qualification what-so-ever. In none of these classification lists there is any indication that they were approved provisionally. Although 2 classifi cation lists were “Approved subject to Chemical Test”, the appellant has not produced any materials before us to show that samples were chemically tested and with what result. The show cause notice and the order-in-original do not refer to any test report. The respondents have stated that the test report was not made available to them. The learned SDR has argued that non-supply of the test report has caused no prejudice to the respondents. We are not impressed by this argument. He has conte nded on the basis of two classification lists that approval thereof subject to Chemical test means provisional approval and hence all the assessments during the impugned period from 15.11.1979 to 29.10.1982 were provisional and there is no time limit for raising demand for duty. The Department was, in the circumstances, bound to disclose the test report, if any. We also observe from the copy of the R.T. 12 Returns for November 1979, December 1979 and January 1980 that the same were finally approved by the Superintendent of Central Excise on 20.3.1981. Although the R.T. 12 Returns for July 1982 and August 1982 and April 1981 and May 1981 were approved provisionally, but those Returns did not include Amegyl Suspension. The appellant has not produced any material to show that the classification lists and the R.T. 12 Returns for the relevant period in respect of the product Amegyl Suspension were approved provisionally. The formalities contemplated in Rule 9-B of the Central Excise Rules, 1944 for provisional assessment were not observed in this case. The show cause notice dated 27.11.1982 is also silent about provi sional assessment. All these facts are sufficient to prove that the assess ment of Amegyl Suspension was not provisional during the period covered by the show cause notice. In the circumstances, the provision of Rule 9-B cannot be invoked to raise demand for duty. The demand for duty should be restricted to six months prior to the issue of show cause notice demanding duty.
13. In view of the foregoing discussions, we allow the appeal of the Revenue on merits, but we restrict the demand for duty under Section ll-A(1) of the Central Excises and Salt Act, 1944 to clearances of Amegyl Suspension made during the period of six months prior to the issue of show cause notice demanding duty. The demand for duty prior to that period is barred by limitation under Section 11-A of the Central Excises and Salt Act, 1944. The order of the Collector (Appeals) is thus partly set aside and the appeal partly allowed in the above terms.