ORDER
S.L. Peeran, Member (J)
1. This appeal arises from order-in-original dated 22-7-1988 passed by the Additional Collector confirming a duty amount of Rs. 15,130.07 demanded in the Show Cause Notice dated 14-7-1988 read with the memorandum under Rule 9(2) read with proviso to Section 11A of the Central Excise Act, 1944. He has also imposed a penalty of Rs. 1,000/- under Rule 173Q of the Central Excise Rules, 1944. The facts of the case are that the appellants are the manufacturer of E.T. Coolers falling under Tariff Item 29A(2) of the erstwhile Central Excise Tariff. While checking the records and accounts for the period from April, 1985 to September, 1985, it was revealed that they had not followed the correct procedure as envisaged under Notification No. 65/83, dated 1-3-1983 i.e. 50% of the duty leviable under Section 3 read with any other Notification issued under Rule 8(1) and enforce for the time being, is exempted. It is stated that according to Notification No. 43/84, dated 1-3-1984 fixing effective rate of duty and Notification No. 95/83, dated 1-3-1983 providing proforma credit on inputs should be first considered, then exemption under Notification No. 65/83, dated 1-3-1983 should be availed. As the party had failed to observe this procedure and as such this had resulted in short payment of duty of the said amount and hence the Collector reviewed the order of the Asstt. Collector dropping the proceedings and issued fresh show cause notice under the said proviso and confirmed the demand. Before the Collector, the assessee stated the proceedings are unsustainable on the ground that there has been no suppression or misdeclaration and once the department had dropped the proceedings, it is not open to the Collector to readjudicate without following the appellate proviso as laid down in CET Act, 1944. Ld. Collector has confirmed the duty amount and has also imposed a penalty as stated. The appellants in this case has filed a written submission.
2. We have perused the written submissions and have heard ld. SDR.
3. On a careful consideration pleas raised by the appellants, this appeal can be disposed of on the question of invokation of larger period and confirmation of demand, on time bar. We notice that the appellate had been proceeded with for short levy by issue of show cause notice by Supdt. on 16-12-1985. This was adjudicated by the Asstt. Collector who dropped the proceedings by his order-in-original. This was reviewed by the Collector by his memorandum dated 20-1-1988 and issued a fresh show cause notice alleging evasion of duty by wilful statement and suppression of facts. We find that the readjudication of proceedings on this ground is not available to the department, as the relevant facts have also been found from the records of the assessee itself and further the Asstt. Collector himself had dropped the proceedings as demands being barred by time. Reopening the proceedings by the Collector by issue of memorandum dated 20-1-1988 is beyond the jurisdiction and not sustainable in law. We upheld the assessee’s contention that there is no suppression of facts or mis-statement to reopen the proceedings. In that view of the matter, we set aside the impugned order and allow the appeal.