1. Duncans Agro Industries Ltd., Calcutta, have filed an appeal against the Order No. 68/CAL/83 dated 21st January, 1983 passed by the Collector (Appeals), Central Excise, Calcutta, 2. Briefly the facts of the case are that the appellant company had filed a refund claim under Rule 12A in terms of Notification No. 166/81 dated 23rd September, 1981 as a rebate of duty of excise on blended tea exported out of India. The appellant's refund claim was rejected by the Assistant Collector vide order dated 20th July, 1982 with the following remarks : "In this connection your attention is drawn to the Corrigendum to the Collectorate Trade Notice No. 125/GL-35/82 dated 19-6-82. The claims are rejected and returned herewith. If you are not satisfied with the order, you may like to prefer appeal to the Appellate Collector, Central Excise, Calcutta." Being aggrieved from the aforesaid order of the Assistant Collector which was served on 29th July, 1982, an appeal was filed on 20th January, 1983 along with a covering letter dated 20th January, 1983 which appears as Annexure 'H' in the papers attached along with the appeal. The relevant extracts from the covering letter is reproduced as under : The appeal filed by the appellant was rejected by the Collector (Appeals) on the ground that it being time-barred under Section 35 of the Central Excises & Salt Act, 1944 without going into the merit of the case and no personal hearing was granted to the appellant.
3. Shri S. C. Mukhopadhyay, learned authorised representative for the appellant has reiterated the facts and has submitted before us that no hearing was granted by the Collector (Appeals) to the appellant and as such there is denial of the principles of natural justice. He has further submitted that the Assistant Collector's order was served on the appellant on 29th July, 1982 and the appeal was filed on 20th January, 1983 and the Collector (Appeals) had discretion to condone the delay of three months which discretion he has not exercised nor he has given an opportunity of personal hearing. He has relied on the covering letter which was also received by the office of the Collector (Appeals) on the 20th January, 1983 and xerox copy of the covering letter bears the stamp of the Collector (Appeals) office and the learned counsel has submitted that this letter should be treated as part of the appeal and the appellant had prayed for personal hearing in the covering letter in these words: "Please let us know well in advance the date of personal hearing." The learned counsel has submitted that if the appeal is not beared on merits, he shall suffer an irreparable loss and it is a denial of principles of natural justice. Even if the Collector (Appeals) did not want to exercise his discretion for further condonation of delay of three months, a hearing should have been granted. The learned authorised representative has submitted that since there is denial of principles of natural justice, the appellant's appeal should be remanded to the Collector (Appeals).
4. The learned Departmental Representative on the other hand has submitted that there is no specific request for hearing in the grounds of appeal ** and there is no documentary value of the covering letter mentioned by the learned authorised representative.
5. After hearing both the sides, we feel that there is denial of the principles of natural justice. The covering letter attached along with the appeal by the appellant is very much part and parcel of the appeal and there is a specific prayer for knowing the date of personal hearing in advance. This clearly specifies that the appellant wanted a personal hearing, Even otherwise, if there had been no request from the appellant for personal hearing, it is a settled law that where there is discretion, the same has to be exercised judicially. We find there is no force in the learned Departmental Representative's arguments.
Keeping in view the facts and circumstances of the case, we remand the appeal to the Collector (Appeals) to look afresh into the matter and decide the same in accordance with law. For statistical purposes the appeal is allowed.