1. Appellants have filed this appeal to the Tribunal against the order-in-appeal No. 21-CE/JPR/81 dated 15-2-82 passed by the Appellate Collector of Central Excise, New Delhi. By the said order appellants appeal against order in original No. V(68)35/CE(iii)/80/1238 dated 4-3-81 passed by the Asstt. Collector of Central Excise, Jaipur confirming the demand of Rs. 39,700.18 from the appellants was dismissed as barred by limitation.
2. The Appellate Collector held that order-in-original was received by the appellants on 6-2-1981 and the appeal filed by them on 7-5-1981.
There was thus delay of one day in filing the appeal which could not be condoned under Section 5 of the Limitation Act the same being not applicable to proceeding under the Central Excise Act.
3. At the hearing of the appeal Shri K.G. Sooji, Consultant for the appellants submitted that the appeal filed by the appellants was in fact not time-barred. The proforma of the order-in-original received by the appellants had columns for showing the designation of the appellate authority to whom the appeal could be filed. These columns were left blank. The appellants therefore, addressed a registered AD letter dated 14-2-1981 to the Asstt. Collector to intimate them about the appellate authority at the earliest (Annexure 9 to the grounds of appeal). The Asstt. Collector by his reply dated 30-3-1981 (Annexure 10 to the appeal) informed the appellants that the appeal would lie before the Appellate Collector of Central Excise, New Delhi. Shri Sooji, submitted that this communication of the Asstt. Collector was received on 1-4-1981. He also submitted that the appellants had filed the appeal on 18-4-1981 though they did not possess an acknowledgement of the same and could not prove it. He further submitted that the order should be taken to have become complete only after clarification from the Asstt.
Collector was received i.e. on 1-4-1981. The limitation for filing of the appeal should, therefore, be computed from this date, Even if the appeal betaken to have been filed on 7-5-1981 as held by the Appellate Collector of Central Excise, it was well within time. Shri Sooji in support of his contention relied on a judgment of the Bombay High Court in Deccan Sales Corporation v. Appellate Collector of Customs, 1980 ELT 4. On behalf of the respondent Shri V. Lakshmikumaran, SDR, defended the order of the Appellate Collector of Central Excise.
5. Para 2 of the proforma of adjudication order in Central Excise case provides for setting out the designation of the authority to whom the appeal against the order in question would lie. The act of the appellants, therefore, in seeking information from the Asstt. Collector as to the forum of appeal cannot but be bona fide. It is also to be remembered that the appellants addressed the communication dated 14-2-1981 in this regard to the Asstt. Collector of Central Excise as early as within a week of receipt of the order. The Asstt. Collector also replied to the same informing the appellants about the appellate authority to whom appeal against the order would lie. In the circumstances, the ratio of the Bombay High Court Decision (Supra) that period of limitation of 3 months would run from the date of such clarification and not from the date of the original order would be applicable. We are in respectful agreement with the same.
6. In view of the foregoing we find that the appeal filed by the appellants before the Appellate Collector, Central Excise was within time and not barred by limitation as held by the learned Appellate Collector. As a consequence, the order under appeal is set aside and the matter remanded to the Appellate Collector, Central Excise, Delhi for deciding the appeal on merits. The appeal is thus allowed and the matter remanded.