- (1.)The only question involved for decision in this appeal pertains to the effective date from which the reclassification made becomes effective for the purpose of recovery of the duty. There is no controversy that the reclassification is effective prospectively as consistently held by this Court. The other aspect, however, is about the date from which, on reclassification, the duty can be recovered, i.e., whether it can be recovered by treating it as short levy under Section 11-A of the Act for a period of six months prior to the date of show-cause notice which may extend to a date prior to the date of proposal for the reclassification.
(2.)In view of the fact that the respondent-assessee is unrepresented, we requested Shri V. Sridharan to appear as amicus curiae. The learned amicus curiae has, after studying the point, placed before us a catena of decisions of this Court, mostly by two-Judge Benches and two decisions by three-Judge Benches. The two decisions rendered by three-Judge Benches are CCE v. Indian Oxygen Ltd., 1996 88 ELT 639 and Ballarpur Industries Ltd. v. Asstt. Collector of Customs & Central Excise, 1995 76 ELT 499. The view taken in Indian Oxygen is in favour of the assessee suggesting that the power under Section 11-A is not available for recovery of duty from a date prior to the date of proposal of reclassification. Same is the view taken recently by a two-Judge Bench in CCE v. Bhiwani Textile Mills, 1996 88 ELT 639. However, the view taken by another three-Judge Bench in Ballarpur appears to be contrary. It also appears that the earlier three-Judge Bench decision in Indian Oxygen was not brought to the notice of the latter three-Judge Bench which decided Ballarpur Case. In such a situation and in view of the significance of the question, it would be appropriate that this appeal, which involves for decision this question, is heard by a larger Bench.
(3.)We request also Shri Joseph Vellapally, Senior Advocate to appear in this matter as amicus curiae.