1. Appeal under Section 35B of the Central Excises and Salt Act, 1944 praying that in the circumstances stated therein, the Tribunal will be pleased to condone the duty demanded by the Assistant Collector of Central Excise, Nellore Division.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri A Venkateswarulu, Managing Director of the appellant-company and upon hearing the arguments of Shri J.M.K.Sekhar, Senior Departmental Representative for the respondent, the Tribunal makes the following Order : 3. The Assistant Collector of Central Excise, Nellore Division, demanded duty "at the appropriate rate" on 1232.793 MTs. of molasses relating to 1977-78 crop season from the appellants under Rule 9(2) of the Central Excise Rules, 1944. On appeal the Appellate Collector of Central Excise, Madras, rejected it as barred by limitation under Section 35 by his order C. No. V/68/196/81, dated 1-1-1932 noting that the Assistant Collector's order was served on the appellants on 11-6-1981 whereas the appeal against it was received in his office on 15-9-1981. Against this order of the Appellate Collector, the appellants went in revision before the Government of India which has been transferred to the Tribunal in terms of Section 35P of the Act for being disposed of as an appeal.
4. Before me, the Managing Director of the appellants-company urges that the order of the Assistant Collector by itself does not determine the exact liability of the appellants. It states "duty at the appropriate rate on the 1232.793 MTs of molasses". A demand for Rs, 38,832.98 was issued by the Superintendent of Central Excise, Tirupati Range under DD2 dated 27-6-1981, served on the appellants on 29-6-1981.
He, therefore, urges that the date of receipt of DD2 should be taken as the correct date from which time-limit should be reckoned.
5. The SDR, on the other hand, urges that the present appeal arises from the order of the Assistant Collector and the demand issued by the Superintendent is not in the picture. Hence the order of the Appellate Collector is maintainable.
6. I note that at the relevant time the duty leviable on molasses was under item 68, the levy being on an ad valorem basis. There is no reference to the value of the molasses in the order of the Assistant Collector. Though the rate of duty could be taken for granted as well-known, the value has to be determined by the proper officer ; and only when that is known, the exact quantum of levy could be computed.
Thus I find force in the contention of the appellants that the order of the Assistant Collector does not stand by itself and has been, so to say, clarified by the demand issued by the Superintendent of Central Excise, Tirupati Range. In this view of the matter, I consider that the appeal to the Appellate Collector was in time. Accordingly, I set aside the order of the Appellate Collector and remand the case to him for determination on merits.