1. This is an appeal under Section 35-B of the Central Excises and Salt Act, 1944 filed by M/s. Teleflo Instrument Co. Pvt. Ltd. against the order No. A-l034/B11-185/82 dated 13.10.82 of the Collector of Central Excise (Appeals) Bombay. The Collector of Central Excise Bombay-H has filed the cross-objection in the appeal. The appellants submit that the order of the Asstt. Collector of Central Excise No. V-68(30) 72/80 dated 11.6.82 is bad as he has confirmed the demand of Rs. 15,285.76 as Central Excise duty even though this demand is time-barred under Section 11-A of the Act. Both in their written submission and oral argument the appellants have explained how the amount is time-barred.
They have also argued on the merits of the case to show how a portion of this demand is not justified. However, for the sake of brevity we are not dwelling on the argument at length. The learned Advocate of the appellants has further drawn our attention to the order of the Collector of Central Excise (Appeals) Bombay dated 13-10-82 and submitted that it was wrong on his part to reject the appeal as time-barred under old Section 35 of the Act, as on the day of issue of the order viz. 13-10-82, the new provisions relating to appeals had come into existence and the Collector of Central Excise (Appeals) has the power to condone the delay in presentation of the appeal. The Advocate for the appellant has referred to the judgment of the Bombay High Court, ELT 1981 page 918, to show that the Government should not retain duties which are not due to them. The appellants have made it prayer that their appeal may be allowed cither on account of the time-bar hitting the demand for duty or the matter may be remanded to the Collector of Central Excise (Appeals) for fresh enquiry and decision. The departmental representative has opposed the submissions on. the ground that the order of the Collector of Central Excise (Appeals) was correct and the same should be upheld.2. We have examined the submissions on both the sides. We have first to consider the question of time bar before we go into the merits of the case. The appellants have not contested the fact that their first appeal dated 25-9-82 to the Appellate Collector of Central Excise, Bombay was not filed in time as per the provisions of Section 35 of the Act as then in existence. They have merely pleaded that on the day of the issue of the order of the Collector of Central Excise (Appeals) on 13-10-82, he had powers to condone the delay in filing of the appeal and he should have exercised the same and examined the appellant's case on merits. We find from the Appellate Collector's aforesaid order that he passed the decision in the appeal on 1-10-82. The order was issued on 13-10-82 only. Therefore, on the date on which the first appeal of M/s, Teleflo Instrument Co. Pvt. Ltd. was decided, it was under the provisions of old Section 35 of the Central Excises & Salt Act, 1944.
Under the aforesaid provisions, the Appellate Collector did not have any discretion for extending (he period. The preamble to the order of the Collector of Central Excise (Appeals) dated 13.10.82 is of an advisory nature and it merely indicates to M/s. Teleflo Instrument Ct.
Pvt. Ltd. the remedy available for relief by way of second appeal to the Tribunal in terms of Section 35-B of the Act It cannot, therefore, imply that the Collector of Central Excise Appeals) has decided the appeal after the provisions of the new Section 35 were brought into existence on 11.10.82. While the learned Advocate has thus tried to find fault with the order of the Collector of Central Excise (Appeals) he is quite silent as to whether the appellants made any request to the Collector of Central Excise (Appeals in terms of the proviso to new Section 35 and whether the appellants had sufficient cause to satisfy the Collector that they were prevented from presenting the appeal within the initial period of three months prescribed under Section 35.
These circumstances have, therefore, to be held against the appellants.
As regards the Advocate's reliance on the judgment of the Bombay High Court E.L.T. 1981 page 918, we find that this is not applicable to the present case. In the case before the Honourable High Court, the original order of the Asstt. Collector t f Customs, Bombay was found to be without jurisdiction and therefore the High Court held that the dismissal of the appeal on the grounds of limitation was erroneous. In the present case no allegation has been made by the appellants that the original order of the Asstt. Collector was illegal. The only argument before us is that the order of the Asstt. Collector confirms the demand for duty which is time-barred. But this does not render it otherwise as illegal. Therefore, the judgment of the Bombay High Court is of no avail to the appellants. In the aforesaid circumstances we find that the present appeal is hit by the time bar under the old Section 35 of the Act. In view of thus position, it is not necessary for us to go into the merits of the case. Accordingly, we dismiss this appeal for the aforesaid reasons. As regards the cross-objection filed by the Collector of Central Excise, Bombay-II, he has since then withdrawn it by his letter dated 25.2.83 The cross-objection is accordingly dismissed as having been withdrawn.