1. This is an application for stay of recovery of Rs. 33,202.20P demanded on the R.T. 12 pertaining to December 1980 by Superintendent, Sahibabad III consequent on the appellant's appeal being dismissed by the Collector (Appeals).
2. The appellant pleaded that the company is running in loss and to prove this he filed the balance-sheet of the company for the year ending 31st December, 1982 and a copy of the income-tax assessment for the year 1982-83. It is, therefore, clear that insistence on the pre-payment of this duty will cause undue hardship to the appellant.
Therefore, we in the circumstances dispense with it under Section 35-F of the Central Excises and Salt Act, 1944, 3. During the course of hearing the appellant prayed that the matter may be heard then and there as the Collector's order suffers from serious defects and prompt action would salvage at least part of the damage caused to the appellant. On a perusal of the matter we felt that this was a reasonable prayer and acceded to it.
4. From the hearing it came to light that the Collector (Appeals) rejected the appellant's prayer on the ground that there can be no appeal against a R.T. 12 assessment by the Range officer as such an officer merely complies with the orders of the competent authority and implements them. He also mentioned that it was open to the appellant to come in appeal if they were aggrieved with the order of the proper officer, namely, Assistant Collector/Superintendent passed at the time of approval of classification list/price list.
5. The appellant's submission in the appeal as well as in the hearing was that the impugned order passed by the Collector (Appeals) was merely on the ground mentioned above though they made a specific request to be heard in person. Further, they submitted that the question involved in this matter was whether the goods were liable to duty on the basis of job charges recovered from the appellant or on the basis of total value thereof and whether in determining the total value of clearance it is the job charges or the total value which need to be taken into account.
6. It was submitted by the appellant that the Additional Collector, Central Excise, Meerut, heard their case (on merits) on 17-6-1982 (this matter pertained to the show-cause notice issued on 26-11-1980), but so far no final order has been passed.
7. The learned Departmental Representative very fairly conceded that the main question regarding the dutiability or otherwise of the goods was not decided by the Additional Collector and the Appellate Collector. The appeal against the assessment on the basis of R.T. 12 should not have been dismissed for the reasons mentioned therein.
8. We further note that the appellant cited a Government of India order in revision application No. 1213/80 dated 26-11-1980 (1982 ELT 642) in which it was held that demand of duty short-levied is a distinct appealable decision under the Central Excises and Salt Act and limitation for this purpose should be computed from the date of issue of the demand and not from the approval of the price lists. This, in our opinion, seems to be a fair order and it binds the lower authorities. Further, the Collector (Appeals) should have heard the appellant in the matter and it was wrong to have disposed of the matter ex-parte without giving them an opportunity.
9. In the circumstances, we set aside the Collector's order and remand the matter to him with the direction that he may consider the appeal on merits and pass an order within a reasonable time which in no case should exceed three months from the date of receipt of this order. It is expected that the Additional Collector, Central Excise, Meerut, with whom the same matter appears to be pending and who heard the appellant nearly a year ago would also come to a decision at an early date in the interests of justice. For this purpose a copy of this order may be endorsed to the Collector, Meerut.