Judgment:
1. The above appeal arises out of the order of the Collector of Central Excise (Appeals), Bombay by which he has classified the following products: (c) Epoxy powder coating white (General purpose) under Tariff Item 15A of the Schedule to the erstwhile Central Excise Tariff, rejecting the claim of the assessees for classification of these products under T.I. 14-1(5). At the outset, learned Counsel for the appellants, Shri M.P. Devnath submits that the appeal is to be disposed of on the preliminary issue of the order of the Collector passed in terms of Section 35E(2), being passed after the expiry of 1 year from the date of decision by the Assistant Collector while the statutory provision contained in Section 35E(3) of the CESA, 1944 makes it clear that no order passed in terms of Sub-section (1) or Sub-section (2) of Section 35E shall be made after the expiry of 1 year from the date of decision or order of the adjudicating authority. In this connection, he draws our attention to the order-in-original which is dated 26-8-1985 although issued on 18-7-1985, while the order passed in terms of Sub-section (2) of Section 35E is dated 16-7-1986. He draws our attention to internal page 8 of the impugned order where the appellants had taken the plea that the period provided in Section 35E(3) was six months, which plea has not been accepted by the lower appellate authority who has further held that the order of the Assistant Collector has been reviewed before the expiry of the statutory period of limitation of 1 year, computing the 1 year period from 18-7-1985 which is the date of issue of the order of the Assistant Collector while the period is to be computed from 26-6-1985 which is the date of the order of the Assistant Collector and computing limitation from this date, the review order passed in terms of Section 35E(2) is beyond the period of one year prescribed in Section 35E(3).
2. Learned DR, Shri J.M. Sharma submits that this plea about the review order having been passed beyond the statutory period of limitation provided in Section 35E(3) was not raised before the lower appellate authority and further the order in review bears 3 different dates viz.
26-6-1985,11-7-1985 and 18-7-1985 and, therefore, it would not be possible to categorically submit that the date of the order/decision of the Assistant Collector is 26-6-1985. He, therefore, requested that time may be granted to him to verify the actual date of the order of the Asst. Collector.
3. We note from the order-in-original as well as from the order of the lower appellate authority that the date of the Assistant Collector's order is 26-6-1985 (which gives rise to an appealable order). Both the preamble of the order as well as title 'subject' mentions clearly that it is an application of Assistant Collector against the order-in-original dated 26-6-1985. Therefore, the learned Counsel is correct in his submission that the said order of the Assistant Collector is dated 26-6-1985. Computing the period of 1 year from this date, the review order passed in terms of Section 35E(2) has been passed beyond the period of one year from the date of the Assistant Collector's order. Hence, following the ratio of the judgment of the Apex Court reported in 1991 (55) E.L.T. 289 in the case of CCE v. MM.Rubber which has since been followed by the Tribunal in Order No.E/271/94-D, dated 3-6-1994 in the case of CCE, Cochin v. Mantek Industries, we hold that the review order is barred by limitation and set aside the impugned order on this preliminary point as the appeal before the lower appellate authority was barred by limitation, and allow this appeal without going into the merits of classification.
4. While agreeing with the Hon'ble Member (J), I would like to add my views and orders as follows: 5. It is observed that the preliminary point relating to time-bar involved in this case, has been raised with reference to Section 35E(2). The language of the Section is important. It allows the Board to pass a review order only within one year from the date of the order which is proposed to be reviewed. The interpretation of this section was subject matter of Supreme Court judgment in the case of C.C.E. v.M.M. Rubber Co. reported in 1991 (55) E.L.T. 289 (S.C.) in which it has been stated, inter alia, as under : "As Sub-section (2) is also relevant for consideration, that may also be set here and thus reads: The Collector of Central Excise may, of his own opinion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, be order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order." Sub-section 35E of the Act which deals with the limitation for exercise of the powers under sub-sections (1) and (2) of the Act and which is the relevant provision for consideration in this appeal reads as follows : "No order shall be made under Sub-section (1) or Sub-section (2) after the expiry of one year from the date of the decision of the adjudicating authority." "It may be seen, therefore, that if an authority is authorised to exercise a power or an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made; that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locuspaetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand." "The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within prescribed time." "In the case of exercise of suo motu power over the subordinate authorities orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation." "The power under Section 35E is a power of superintendence conferred on a superior authority to ensure that the subordinate officers exercise their powers under the Act correctly and properly. Where a time is limited for the purposes by the statue, such power, as under Section 33A(2) of the Indian Income-Tax Act, 1922 referred to in Muthia Chettiar (supra) should be exercised within the specified period from the date of the order sought to be considered. To hold to the contrary would be inequitable and will also introduce uncertainties into the administration of the Act." "We are, therefore, of the opinion that the period of one year fixed under Sub-section (3) of Section 35E of the Act should be given its literal meaning." 6. The above observations and conclusion of the Hon'ble Supreme Court are required to be kept in view; And applying the same, I agree with my Id. colleague that the date of the Assistant Collector's order is 26-6-1985. It is this date which is relevant for our purpose; And the appeal before the Collector has been filed against this order (dated 26-6-1985) by virtue of the Collector's order dated 16-7-1986 is beyond one year. The department's contention that 18-7-1987, the date of the issue of the order, is relevant, cannot be accepted in view of the above said Supreme Court judgment and in particular. The observation that the order or the decision of such authority comes into force or becomes operative or becomes an effective order on and from the date when it is signed by him and not with reference to the date on which it is made public or notified in some form or when it could be said to have left his hand. The date of the communication of the order to the party, whose rights are affected, is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time.
7. Therefore, I agree with the Id. colleague that the Collector (Appeals) ought to have rejected the department's appeal as time-barred with reference to Section 35E(3) of the Central Excise Act. We, therefore, set aside the impugned order and accept the appeal without going into the merits of the case as already pronounced in the open Court.