1. The Collector of Central Excise, Bangalore, has filed an appeal being aggrieved from the order-in-appeal No. 116/86(6), dated 22nd July, 1986 passed by the Collector of Central Excise (Appeals), Madras.
In column No. 3 of the appeal memo the date of communication has been mentioned as 17th March, 1987. The matter had come up before the Bench for hearing on 16th May, 1988 and at the outset of the hearing Shri A.K. Jain, the learned advocate who had appeared on behalf of the respondent had stated that the order-in-appeal was passed on 22nd July, 1986 and the fair copy was attested on 17th September, 1986. On the objection of the advocate, the Bench had directed the appellant to file an affidavit in this regard supported with photo copies of the relevant records. In response the Collector of Central Excise, Bangalore, has filed an affidavit duly supported with the relevant records. Shri A.K.Jain has now submitted that the date of the order-in-appeal is 22nd July, 1986 and its communication to the Collector has been affirmed as 17th March, 1987. However, communication of the said impugned order dated 22nd July, 1986 had been made by the Assistant Collector to the appellant herein (CCE Bangalore) on 15-12-1986. He, therefore, submits that the period for limitation should be reckoned from 15-12-1986.
Seeing in that light, he urges that the appeal filed on 11th May, 1987 is barred by time, because the limitation would expire on 15-3-1987. In support of his argument he has referred to the judgment of the Supreme Court in Harikishan v. The State of Maharashtra and ors. [SCR (2 Supp.) 1962 (page 925)]. He also cites Tribunal's decision in the case of C.C.Bombay v. S.B. Plastic Industries and Ors. 1988 (14) ECR 573 (CEGAT SB-C). Shri Jain has further pointed out that Section 35-B(3) does not spell out as to from whom the communication of the impugned order should be obtained by the Collector.
2. Shri B.K. Gupta, the learned SDR who has appeared on behalf of the appellant states that the appeal was well within time. He argues that Sections 35A(5) and 35B(3) have to be read together. Section 35-A speaks of communication of the order passed by Collector (Appeals) to the concerned Collector of Central Excise. Therefore, the word "communication" occurring in Section 35B(3) would mean communication by the Collector (Appeals) to the Collector of Central Excise. In that event, he submits that communication of the impugned order by the Collector (Appeals) has taken place in this case on 17-3-1987 as already stated in EA 3 Form. From that angle the appeal is well within time. He relies in support on a judgment of the Tribunal in M-131/1988-D, dated 13-6-1988 (CCE Bhubaneshwar v. Orissa Textile Mills Ltd.). He has argued that the judgment cited by the learned advocate will not help him.
3. We have heard both the sides and have gone through the facts and circumstances of the case. The Collector of Central Excise, Bangalore has filed an affidavit. The affidavit is reproduced below :- "Before the Hon'ble Customs, Central Excise & Gold (Control) Appellate Tribunal, Special Bench-A, New Delhi'Collector of Central Excise, Bangalore AppellantVs.
I, Sukumar Shankar, Collector of Central Excise, Bangalore Central Excise Collectorate, Bangalore do hereby solemnly affirm and state as follows: A copy of order-in-Appeal No. 116/86(B), dated 22-7-1986 passed by the Collector of Central Excise (Appeals), Madras in respect of M/s.
Dynamatic Hydraulics Ltd., Bangalore meant for Collector was received in this office on 13-3-1987 (but actually in-warded in I.C. register on 16-3-1987 and received in appeal Section on 17-3-1987) and necessary action to file an appeal against the said order was initiated within the stipulated period from that date. In support of the above affidavit, photo copies of the despatch letter of appellate Collector Madras and of the extract of inward register of this office are enclosed for perusal.
In this connection it is to be clarified that as is evidenced from appellate Collector's letter A.No. 8/88(B) dated 7-11-1988 (Copy enclosed for reference) that copy of the impugned Order-in-Appeal passed on 22-7-1986 was despatched, along with relevant case file to Assistant Collector of Central Excise, Yeshwanthpur Division in this Collectorate, while no copy of the same was despatched to this Office. However, after ascertaining from Assistant Collector, Yeshwanthpur Division about receipt of his copy of impugned Order-in-Appeal, a reference was made from this office on 18-12-1986 to Collector (Appeals) informing about non-receipt of the Order-in-Appeal meant for Collector and requesting him to send the same early (copy enclosed). In response thereto, Collector (Appeals) vide his letter C.No. V/33D/1/86, dated 9-3-1987 (copy enclosed) has sent the copy of the said Order-in-Appeal which was received in this office on 13-3-1987, thus involving a time lag of about six months in getting a copy of the Order-in-Appeal in question.
The facts stated above are true to the best of my knowledge and information available from the records.Date: 11-1-1989 Collector of Central Excise BANGALORENo. of corrections : Nil Solemnly affirmed/Sworn to before me on 11th day of January, 1989.(Seal) M. SHANTHA, BA, LL.B., ADVOCATE & NOTARY NO. 14, Upstairs 'B' Street, 4. With the affidavit the Collector has filed photocopy of the 1C Register dated 16th March, 1987, Letter A.No. 8/88(B) dated 7-11-1988 from Collector of Central Excise (Appeals), Madras with copy of the enclosed, Letter C.No. IV/3/12/86 (Appeals) dated 18th December, 1986 from Assistant Collector of Central Excise, Yeshwanthpur Division, Bangalore, Letter A.No. 8/88(B) dated 9th March, 1987/C. No. V/33D/1/86 from Collector of Central Excise (Appeals), Madras and copy of letter dated 15th December, 1986 to the Collector of Central Excise, Bangalore by Assistant Collector, Yeshwanthpur Division, Bangalore.
5. The Collector (Appeals)' letter dated 7th November, 1988 is reproduced below:- "OFFICE OF THE COLLECTOR OF CENTRAL EXCISE (APPEALS) 121 Nungambakkam High Road, Madras : 600 034 - Order-in-Appeal No. 116/86 (B) dated 22-7-1986Please refer to your letter C.No. IV/3/82/87 (Appeals) dated 7-10-1988on the subject.
2. The order-in-appeal No. 116/86(B) dated 22-7-1986 was sent to the Assistant Collector of Central Excise, Yeshwanthpur Division on 23-9-1986 under R.P.No. 176, along with case files. A letter was received from the Assistant Collector (Legal), on 8-12-1986 received in this office on 22-12-1986, stating that order-in-appeal No. 116/86(B) dated 22-12-1986 passed in appeal No. 8/86(B) in respect of appeal filed by M/s. Dynamatic Hydraulics Ltd., Bangalore against the order-in-original No. 56/85 dated 14-10-1985/29-10-1985 of the Assistant Collector, had not been received in his office so far. In reply to this letter, a copy of the order-in-appeal was sent vide this office letter dated 9-3-1987 and despatched on the same day. A photo-copy of the despatch letter is enclosed, which may be taken as the date the order-in-appeal was received by you.Encl. One Sd/- (A.K. DUTT) COLLECTOR (APPEALS)" 6. Keeping in view the affidavit of the Collector of Central Excise, Bangalore and the connected correspondence, we are of the view that there is no delay in the filing of the appeal and as such the preliminary objection of the learned Advocate on the point of limitation is over-ruled.