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Hyderabad Allwyn Limited Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Tamil Nadu
Decided On
Reported in(1987)(31)ELT85Tri(Chennai)
AppellantHyderabad Allwyn Limited
RespondentCollector of Central Excise
Excerpt:
.....is being treated as an appeal in terms of section 35p of the act, is against the order of the central board of excise and customs dated 28-4-1978 in no. 128 of 1978 rejecting an appeal of the appellant dated 21-11-1973 against the order of adjudication no. 2/72, dated 21-8-1973 passed by the collector of central excise, hyderabad. in its order the board has found that the order of the collector was received by the appellant-company on 23-8-1973 whereas their appeal dated 21-11-1973 had been received in the board's office on 30-11-1973 -after a period of three months against the provisions of section 35 of the act; the board observed that it had no powers to entertain an appeal received after three months from the date of receipt of the order appealed against and accordingly rejected.....
Judgment:
1. Appeal under Section 35B of the Central Excises and Salt Act, 19**, praying that in the circumstances stated therein, the Tribunal will be pleased to set aside the order of the Collector of Central Excise, Hyderabad, dated 21-8-1973 in O.R. No. 2/72(1).

2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri P.S. Subramanian, Consultant of the appellant and upon hearing the arguments of Shri A. Vijayaraghavan, Departmental Representative for the respondent, the Tribunal makes the following Order : 3. The revision application which is being treated as an appeal in terms of Section 35P of the Act, is against the order of the Central Board of Excise and Customs dated 28-4-1978 in No. 128 of 1978 rejecting an appeal of the appellant dated 21-11-1973 against the order of adjudication No. 2/72, dated 21-8-1973 passed by the Collector of Central Excise, Hyderabad. In its Order the Board has found that the order of the Collector was received by the appellant-company on 23-8-1973 whereas their appeal dated 21-11-1973 had been received in the Board's office on 30-11-1973 -after a period of three months against the provisions of Section 35 of the Act; the Board observed that it had no powers to entertain an appeal received after three months from the date of receipt of the order appealed against and accordingly rejected the appeal as time barred.

4. Before us this order of the Board is disputed on the score that the date for purposes of calculating time limit should be 6-9-73/8-9-73, the date on which the Superintendent of Central Excise quantified the amount of duty payable by the appellant-company in terms of order No.2/72(I) of the Collector. Viewed in this angle, the appeal to the Board was in time. In support of their plea, the representative of the appellant referred to a decision of the Government of India in the details of the case which led to the decision of the Government are not known.

5. It does not seem to be a correct proposition of law that where certain arithmetical calculations are made on the basis of findings on facts given by an adjudicating authority, the date when such calculations are made and the result intimated will be the relevant date for reckoning the period of limitation. In effect, that would mean that a subordinate officer who does the clerical work of calculation becomes part of the adjudicating set-up and will in fact add to an order of adjudication. In the present case, a perusal of the appeal filed to the Board shows that the appellant-company have challenged not the quantum of duty worked out by the subordinate officer but the findings of the Collector in respect of each of the violations under Rules 9(1), 56A, 223A and 226 of the Central Excise Rules, 1944. There is no doubt that the appeal to the Board was in substance against the order of the Collector and not against the demand quantifying the amount duly worked out in accordance with the observations of the Collector in the last paragraph of his order wherein he concludes - "(ii) that M/s. The Hyderabad Allwyn Metal Works Ltd. shall pay duty, which I hereby demand under the aforesaid Rule 9(2), in respect of goods which have been held in this order as the goods removed from the factory clandestinely and/or without payment of duty.

The Assistant Collector concerned shall calculate the amount of duty in respect of the concerned goods and issue a demand and the assessee shall pay up the duty within one month of the receipt of the demand." 6. We note that demand for duty in respect of the goods which have been held to have been removed clandestinely and/or without payment of duty is already contained in the order of the Collector. What has been left to the Assistant Collector was the working out of the arithmetical figures involved. We also note that the appellant-company are working under Self Removal Procedure under which they have in their possession the valuation list approved by a competent authority indicating the value of individual items on which duty is payable under the Act and classification list, again duly approved by the proper officer, indicating the rate of duty leviable on each such item. The arithmetical calculation for arriving at the quantum of duty due on the goods held by the Collector to have been removed from the factory clandestinely and/or without payment of duty should be capable of being worked out by the appellant-company themselves based on (a) the order of the Collector, (b) the valuation list and (c) the classification list. There is thus no need for a formal demand indicating the amount to be issued by the Assistant Collector for purposes of complying with the effective part of the order of the Collector. At best, the direction to the Assistant Collector contained in the order of the Collector is superfluous.

7. Before us the fact that the appeal was in fact received late in the office of the Board is not disputed by the appellant. The order of the Board is maintainable on facts and in law. Accordingly, we dismiss the appeal.


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