ORDER
K.S. Venkataramani, Vice President
1. In this case the appellants availed of Modvat credit. The Jurisdictional Assistant Commissioner of Central Excise after initiating proceedings against the appellants for recovery of wrongly availed Modvat credit passed in order ultimately dropping the demand. Against this order of the Assistant Commissioner review application was filed as an appeal before the Commissioner (Appeals) who has passed the impugned order whereby he has set aside the Assistant Commissioner’s order dropping the demand and the present appeal has been filed by the assessee appellant. The appellants are not present who have given written submissions wherein they have submitted that the demand is barred by limitation under Rule 57-I and that though they have raised this issue before the Commissioner (Appeals) he has not given any finding thereon on the ground that it was not before the Assistant Commissioner.
2. After hearing Shri A.R.S. Kumar, the Ld. JDR, it is seen that the impugned order has recorded the appellant’s submission resisting the demand on grounds of limitation saying that the two show cause notices issued in this case were time barred. The Commissioner (Appeals) however, has observed that the time bar issue was not raised by the appellant and before the Assistant Commissioner and hence it cannot be considered by Commissioner (Appeals) at that stage. The appellants have again reiterated in the appeal before the Tribunal that the demand is time barred and that they had rightly raised point of limitation at the appeal stage which has unjustly not been considered by the Commissioner (Appeals). We find force in this argument. The question of limitation is one of law, and it is well settled that such a question can be raised at any stage. The Commissioner (Appeals) is also by statute not precluded from going into this aspect at the appeal stage. Examining this contention, it is seen that there are two Show Cause Notices, both of them issued on 20-4-1988, first Show Cause Notice covers the period April, 1986 to July, 1986 and the Second Show Cause Notice is for the period May, 1987 to July, 1987. Under Rule 57-1, as it existed at the material time, the computation of time limit is to run from the date of taking credit. We have noted above from the show cause notice, the date of taking of credit as given in the two Show Cause Notices and in that, context it is clear that both the Show Cause Notices are beyond six months under 57-I and hence hit by limitation. Although at the material time there was no specific limitation in the Rule 57-I itself, but as per the Tribunal decisions as also the Bombay High Court in the case of Fabril Gasosa v. Union of India 1997 (96) E.L.T. 241 (Bom.) the provisions of limitation under Section 11-A would apply even prior to October, 1988 when the rule came to be amended. In this view of the matter, the impugned order is set aside and the appeal is allowed on the ground of limitation.