MANJULA CHELLUR, J. ( 1 ) THIS appeal is filed challenging the orders of E1 Court in ESI Application No. 166/90. ( 2 ) IN brief the facts that led to the filing of the appeal are as under: the respondent herein was the applicant before the E1 Court. The corporate office of the respondent-applicant was originally at Madras, which was shifted to Bangalore in June 1988. The filter division of the company is at bangalore and Engineering Division is at coimbatore. All the cash books and ledgers were maintained in the Head Office at Madras earlier. The Inspector of the appellant inspected the books of amounts in Madras in the year 1986. Subsequently a notice was sent to applicant-respondent dated July 31, 1990 demanding contributions in respect of professional charges and also on the cost of paints and other materials that were left out. According to the respondent it was not liable to pay contributions as demanded and however, a personal hearing was fixed to hear the applicant in person. ( 3 ) ACCORDING to the respondent in view of section 77 of the Act, ESI Corporation cannot claim time barred contributions i. e. , after a period of 5 years. However, the ion passed an order levying contribution of Rs. 16,907. 00. The contribution demanded was for the period between 1975-85. The impugned order was challenged by the respondent-applicant before the E1 Court wherein the appellant-Corporation filed a detailed objection statement contending that subsequent to amendment of the Act in 1989 question of the demand being time barred does not arise. Even otherwise the demand for contribution is the period prior to 1989 amendment. However, the E1 Court took a view that the issuance of observation slip dated february 21, 1990, which is marked at Ex. R1 and by that time the Act was amended relating to limitation. Therefore, it held the claim for contribution beyond 5 years from February 21, 1990 was clearly time barred. It also held that the claim of the Corporation was not totally wrong because at the time of inspection it was noticed that contributions were not paid on miscellaneous expenses like repairs, maintenance of machinery, repair and maintenance of buildings, transport charges, which do have labour component apart from material component. It also held that the claim of the Corporation was not totally wrong because at the time of inspection it was noticed that contributions were not paid on miscellaneous expenses like repairs, maintenance of machinery, repair and maintenance of buildings, transport charges, which do have labour component apart from material component. In other words, according to the El Court the claim of the appellant was not totally wrong but it was time barred. Aggrieved by the said order, the present appeal is filed challenging the orders of the E1 Court on several grounds. The main ground of attack is with regard to limitation. According to the appellant-Corporation amendment has come into force in the year 1989 and therefore the provision regarding limitation does not apply to the contribution, which was due for the period 1975-85. ( 4 ) ACCORDING to the learned counsel for the respondent herein the show cause notice is dated February 21, 1990, subsequent to the amendment. Therefore, the claim beyond 5 years is time barred. He further brought to the notice of the Court Regulation 32. 2 of the Act wherein there is obligation on the employer or the management to maintain records only for 5 years. ( 5 ) ON hearing the contentions of both the parties the substantial question which arises for court's consideration in this appeal are: "whether Section 77 (1) (A) of the ESI Act is applicable to the case on hand and what order?" ( 6 ) THE learned counsel for the appellant relies on the following citations: l. FJR Vol. 56. 490 2. AIR 1997 SC 2441 3. 1997 - II-LLJ-366 (SC) 4. 1997-III-LLJ (Suppl) - 1208 (SC) 5. 1998-I-LLJ-1190 (Ker) 6. 1997-III-LLJ (Suppl)-l 127 (Kant) ( 7 ) ADMITTEDLY, the claim made by the ESI corporation is for the period between January 1975 to January 1985. As per the observations of the Inspector on January 22, 1990 a letter was issued to the respondents herein claiming the contribution. A show cause notice was then issued on July 31, 1990. ( 8 ) IT is not in dispute that a personal hearing was afforded to the respondent herein on August 20, 1990. After hearing the parties, the impugned order came to be passed on september 21,1990 levying contribution of Rs. 16,907. 00. A show cause notice was then issued on July 31, 1990. ( 8 ) IT is not in dispute that a personal hearing was afforded to the respondent herein on August 20, 1990. After hearing the parties, the impugned order came to be passed on september 21,1990 levying contribution of Rs. 16,907. 00. According to the respondents the said demand is barred by limitation by virtue of the amendment of ESI Act in 1989. In order to appreciate the facts in relation to the law applicable to the case, it is necessary to narrate section 45-A under which the impugned Order came to be passed. ( 9 ) THE proviso says no order shall be passed by the Corporation unless the employer or the person who would be aggrieved by such an order is given a reasonable opportunity of being heard. The records speak that such an opportunity was offered and the respondents herein did participate in the personal hearing. Section 45-A (l) and (2) reads as under:"determination of contributions in certain cases:-1) Wherein in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of Section 44 or any Inspector or other official of the Corporation referred to in sub-Section (2) of Section 45 is (prevented in any manner) by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under Section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment: provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in charge of the factory or establishment has been given a reasonable opportunity of being heard. (2) An order made by the Corporation under sub-section (1) shall be sufficient proof of the claim of the Corporation under Section 75 or for recovery of the amount determined by such order as arrears of land revenue under Section 45-B (or the recovery under Section 45-C to 45-1)". ( 10 ) WHEN once an order is made under section 45-A determining the amount of contribution payable by the Corporation, it will amount to proof of claim under Section 75. ( 10 ) WHEN once an order is made under section 45-A determining the amount of contribution payable by the Corporation, it will amount to proof of claim under Section 75. So far as recovery is concerned, it can resort to section 45-B where the recovery can be made as arrears of land revenue or the recovery can be proceeded in accordance with Section 45-C to 45-1. ( 11 ) NOW let us look into the decisions of the Apex Court and various High Courts that are relied upon by the learned counsel for the appellant. ( 12 ) ESI Corporation v. F. Fibre bangalore Private Limited AIR 1997 SC 2441 : 1997 (1) SCC 625 : 1997-II-LLJ-739. This is a case where the Full Bench of this High Court made the following order at pp. 739, 740 of LLJ:"where, in cases to which provisions of section 45-A of the 'act' are attracted, the corporation by an order made in accordance with that Section determines the amount of contributions payable and that claim is disputed by the employer, it would not be necessary for the Corporation to seek resolution of that dispute before the insurance Court. Such a claim is recoverable as arrears of land revenue. If the employer disputes the claim it is for him to move the Insurance Court for relief. In other cases-other than cases where determination of the amount of contributions under Section 45-A is made the Corporation, if its claim is disputed by the employer, should seek an adjudication of the dispute before the Insurance Court, before enforcing recovery. " ( 13 ) THIS High Court held that when once the order under Section 45-A becomes final, there is no need for the Corporation to seek adjudication before the Insurance Court and in all the other cases the Corporation is required to go to the Insurance Court, having adjudicated and then make a demand. The Apex court found the conclusion of the verdict was an error and ultimately held that though Section 75 of the Act does not envisage as to who has to approach the Insurance Court, by necessary implication when the employer denies the liability or applicability of the provisions of the act or the quantum of the contribution to be deposited by the employer, it is for him to approach the Insurance Court and seek adjudication. It is not for the Corporation in each case whenever there is a dispute to go to the Insurance Court and have the dispute adjudicated. Otherwise the Act would become unworkable and defeat the object and purpose of the Act. ( 14 ) GOODYEAR India Limited v. Regional director, ESI Corporation and Others AIR 1997 SC 2415 : 1997 (3) SCC 189 : 1997-II-LLJ-366 the question before the Apex court was when would the cause of action for contributions would arise prior to the amendment of 1989 and also subsequent to the said amendment? In this case the demand notice was made on December 1, 1982 by the corporation to contribute the amounts for the period from January 28, 1968 to October 31, 1979 for the establishment at Bangalore and from January 28, 1968 to August 31, 1979 for the establishment at Indore. The controversy before the Apex Court was to the limitation and the period from which they are liable to make the contribution. At para 9, the Apex Court held as under at p. 368 of LLJ:"9. It would thus be seen that the cause of action for contribution would arise only after the decision by the Insurance Court in the proceedings is laid under Section 75 of the Act. Until then the cause of action cannot be said to have arisen. In other words, there is no bar of limitation. It is seen that the Act was subsequently amended by section 30 of the Amendment Act 28 of 1989, which came into effect with effect from October 20, 1989. It provides application can be made within 3 years from the date of arising of the cause of action. This amendment has no application to the proceedings in this case since the cause of action had arisen prior to the amendment. Under these circumstances, there is no bar of limitation for the payment of the contribution as contended. " ( 15 ) NAGAMMAI Cotton Mills v. Regional director, ESI Corporation, Madras and another 1994 Supp. (2) SCC 142 : 1997-III-LLJ (Suppl) - 1208 the question that came up for decision before the Supreme Court was whether the manufacturing unit was liable to pay employer's special contribution under chapter VA introduced as "transitory provisions". This decision has no application to the facts of the present case. (2) SCC 142 : 1997-III-LLJ (Suppl) - 1208 the question that came up for decision before the Supreme Court was whether the manufacturing unit was liable to pay employer's special contribution under chapter VA introduced as "transitory provisions". This decision has no application to the facts of the present case. ( 16 ) N. Vijayan Pillai v. ESI Corporation 1998-I-LLJ- 1190 (Ker) pertains to decision of hon'ble High Court of Kerala. In this case the said Corporation issued notice dated November 1, 1988 directing the employers to pay the arrears of contribution in respect of employees for the period from April 1, 1979 to March 31, 1982. This was objected by the employers. However, after the enquiry the Insurance Court held that the Corporation had demanded the contribution without affording any opportunity to the employer to explain their case. Accordingly, the notice was set aside. The E1 court further directed the Corporation to assess contribution afresh after affording sufficient opportunity to the employer. Aggrieved by such order of the E1 Court, the employer went up before the High Court. The question that arose before their Lordships was what was the limitation for filing application under Section 77? Would it be 5 years from the date when cause of action arises or from the period to which the contribution relates? Their Lordships held that cause of action in that case arose for the first time with issue of notice. It was held as under at p. 1192 of LLJ:"the Corporation cannot make any claim for contribution after 5 years of the period to which the contribution relates. The proviso refers to the claim arising out of a cause of action and not a claim arising out of contribution due. By a legal fiction contained in Clause (b) the cause of action in respect of the claim by the Corporation from the principal employer arises on the date on which the Corporation makes the claim for the first time. The words "five years of the period to which the claim relates" contained in the said proviso shall not be interpreted to mean "five years of the period in relation to which the amount of contribution is due". If such an interpretation is given, clause (b) would become redundant. What is meant to be understood is to decide when the cause of action in respect of a claim by the corporation had arisen. If such an interpretation is given, clause (b) would become redundant. What is meant to be understood is to decide when the cause of action in respect of a claim by the corporation had arisen. Once the date of arising of cause of action is known then the corporation cannot make any claim after five years from the date to which it had arisen. In the present case the cause of action arose for the first time with the issue of exhibit "a-1" notice. " ( 17 ) IN Siddeswar and Company v. ESI corporation 1997-III- LLJ (Suppl)-1127 this high Court held that no time limit is prescribed for recovery of contributions under Section 45-A where the Corporation has an option to resort to recovery of contribution as arrears of land revenue. ( 18 ) IN ESI Corporation v. Ramdas reddiar FJR Vol 56 490 it was held as under:"unless the statute itself limits the period for recovery by process envisaged by the statute itself there would be no scope for applying the provisions of the Limitation act. In other words, the law of limitation being confined to action in Courts, will have no application where a statute creates a right and does not envisage an action in Court for enforcing the right. That would be the position in a case arising under the ESI Act. The obligation to pay contribution imposed on the principal employers and the right of the Corporation to recover such contributions are creations of the statute and do no exist independent of the statute. The mode of recovery is prescribed in the statute itself. It is either by resort to Section 45-B or by resort to Section 75 read with Section 78 (4 ). Therefore the right to recover such contribution would not in any way be affected by any law of limitation other than what is provided in the Act itself, if there be any and the Limitation Act will have no scope for operation in respect of any claims arising under Section 45-A of the Act. " ( 19 ) ADMITTEDLY, in the case on hand the order that was challenged before the E1 Court was against the order of assessment regarding contribution made under Section 45-A. This adjudication was made by the Corporation as envisaged under the Act with an intention to resort to recover as arrears of land revenue. " ( 19 ) ADMITTEDLY, in the case on hand the order that was challenged before the E1 Court was against the order of assessment regarding contribution made under Section 45-A. This adjudication was made by the Corporation as envisaged under the Act with an intention to resort to recover as arrears of land revenue. The respondent herein who is entitled to challenge the said determination made under section 45-A has resorted to the Court by filing an application as provided under the Act. So far as that application is concerned the period of limitation is envisaged. The provisions of the enactment do not debar or restrict the right of the Corporation to come before the E1 Court with an application under Section 75 for determination of an issue. This does not mean the right given under Section 45-A to the corporation is taken away in any way. It may be true that practically the Corporation may not have an occasion to resort to Section 75 as it can choose to prefer for adjudication under section 45-A and then recover under Section 45-B as arrears of land revenue. If the corporation approaches the E1 Court for adjudication in a case where it feels more appropriate to move the E1 Court for adjudication rather than seek adjudication under Section 45-A, definitely the limitation as provided under Section 77 would be applicable. In other words the period of limitation prescribed under Section 77 for an application under Section 75 definitely will apply to such adjudication. ( 20 ) IN the entire enactment there is no period of limitation within which adjudication could be sought for under Section 45-A. So far as enforcement of an order passed under section 45-A, Section 45-B provides that the amount be recovered as arrears of land revenue. The law of limitation is not applicable so far as adjudication made under Section 45-A in the absence of providing any limitation for the recovery as envisaged under Section 45-A. So far as adjudication under Section 75 the statute itself has provided period of limitation under section 77. The other decisions referred to above also clarify when exactly the cause of action arises. The other decisions referred to above also clarify when exactly the cause of action arises. It is optional for the Corporation either to proceed for adjudication and recover the contribution as arrears of land revenue or seek for adjudication before E1 Court under section 75, but in any event it cannot be said that when the employer approaches the E1 court challenging the order under Section 45-A, the period of limitation as envisaged under Section 77 would be applicable in relation to the claim of Corporation. Therefore, it is very clear from the above discussion and reasoning that the law of limitation will have no application in respect of any claim arising under Section 45-A of the Act. ( 21 ) THE Trial Court no doubt agrees with the contention of the Corporation that the contributions deserve to be paid on certain amounts like repairs and maintenance of machinery, repairs and maintenance of the buildings. The freight and transport charges would include labour component apart from the cost of the material. It only says that the applicant did not give the bifurcated figures which would reveal the actual expenses towards the labour. However, the respondent is at liberty to furnish such bifurcated figures if available and the Corporation also will have an opportunity to submit in that regard. ( 22 ) IN view of this reasoning, necessarily the order of the E1 Court deserves to be set aside by allowing this appeal. Consequently the matter deserves to be sent back to the Court below for determination of contribution payable by the respondent herein. Accordingly, the following order is made: the appeal is allowed. The Court below is directed to determine the contributions and other amounts payable by the respondent within 3 months from the date of receipt of records in terms of above observations. --- *** --- .