Chittatosh Mookerjee, J.
1. The short point in these two Rules is whether or not the Collector of Excise, Calcutta had committed any error of jurisdiction by dismissing on the ground of limitation the two appeals preferred by the petitioner company against the orders passed by the Assistant Collector of Central Excise, Calcutta, II-Dvn.
2. The petitioner No. 1 is a well-known manufacturer of paper and papers boards. On 2nd April, 1971 the Assistant Collector, Central Excise, Calcutta, II-Division upheld the re-classification of paper made by the Superintendent, Central Assistant Unit No. II(I) and ordered payment of diffe- rential duty. The petitioner company received the said order on 9th October, 1971. The prescribed period of limitation of an appeal under Section 35 of the Central Excises and Salt Act, 1944 was three months. On 8th January, 1972, the petitioner sent by registered post with A/D an appeal under Section 35 of the Act addressed to the Appellate Collector Central Excise, Calcutta, Custom House, Calcutta-1. On 11th January, 1972, the said registered cover containing the appeal of the petitioner was' received in the office of the appellate autho- rity. The Appellate Collector, Central Excise rejected the said appeal as time barred without going into the merits of the case. The petitioner company filed a.revisional application under Section 36 of the Act- The Joint Secretary to the Govt. of India, Ministry of Finance (Department of Revenue and Insurance) rejected the said revisional application and upheld the order of the appellate collector holding the appeal of the petitioner as time barred. The aforesaid orders are subject-matter of challenge in Civil Rule No. 3133(W) of 1976.
3. On 10th June, 1971 the petitioner company was served with another adjudication order dated 2nd September, 1972 of the Assistant Collector of Central Excise, Calcutta, II-Division. On 9(h June, 1972 the petitioner sent under registered post with A/D an appeal under Section 35 of the Central Excises and Salt Act to the Appellate Collector of Customs, Calcutta, Customs House, Calcutta-1. On 14th September, 1971, the said appellate authority received postal cover containing the said appeal preferred by the petitioner company. The Appellate Collector of Central Excise by his order dated 20th October, 1973 rejected the appeal as time barred without considering the merits of the same. The Government of India dismissed the revisional application of the petitioner company and confirmed the aforesaid order of the Appellate Collector. The petitioners have obtained Civil Rule No. 3134(W) of 1976 against the aforesaid orders.
4. In these two cases, the petitioner company had sent its appeal petitions under registered post with A/D before the expiry of the prescribed period of limitation. But the postal authorities had delivered the said registered covers to the Appellate Collector of Central Excise, Calcutta after expiry of the period of limitation for the said two appeals. The petitioner has submitted that the respondents should have held that the two appeals were presented by the petitioner company on the dates, the registered covers containing the appeal petitions were made over to the postal authorities for transmission and the respondents committed jurisdictional error by treating the dates of delivery of the postal covers as the dates of presentation of the two appeals.
5. The Section 35 of the Central Excises and Salt Act and the Rules have not prescribed the manner of presentation of an appeal by a person deeming him- self aggrieved by any decision or order passed by a Central Excise Officer under the said Act and the Rules made thereunder. Therefore, the expressions 'any person--------------------------------------may within three months------------------- appeal---------------------therefrom---------------------------------' should be taken in their ordinary accepted meaning. The term 'to appeal' means to file or present a petition of appeal. The usual mode of filing an appeal is to pre- sent the petition or memorandum of appeal to the Appellate Authority or a person employed by it. In case there is any prescribed period of limitation, an appeal must be presented in time. In other words, the appellant is reauired to make over the petition or memorandum of appeal, within the prescribed time if any, to the appellate authority under Section 35 of the Act, the dates on which the appeals were posted by the petitioner No. l cannot be considered as the date of filing of the appeals. I find no authority for the proposition that the postal authorities are always deemed to be the agents of the addresses of postal articles. Rule relating to filing of appeals may, however, provide that the appeals may be sent by registered post to the appellate authority, in that case the postal authorities may become agents of the addressee. Even when there are no such express provisions, the authorities may by their acts and conduct re- present that the postal authorities are their agents. In these two circumstances, the date of posting of the cover containing the memo/petition of appeal shall be deemed as the date of filing of or presenting the said appeal.
6. I may now proceed to mention some of the reported decisions in the above point. In Commissioner of Income Tax, Bombay v. Ogale Glass Works Ltd.- : 25ITR259(SC) , one of the terms of the agreement was that the payments were to be made on submission of the bills by cheques on a branch of the Reserve Bank or the Imperial Bank of India On the facts and circum- stances of the case, the Supreme Court in M/s. Ogale Glass Works Ltd's case (Supra), held that although the assessee was a non-resident company incorpo- rated and carrying on business outside British India, the incomes, profits or gains in respect of the said sales were received by the assessee in British India.
7. The Supreme Court in K. Satwant Singh v. The State of Punjab- : 2SCR89 , had distinguished their decision in M/s. Ogale Glass Works Ltd's case (Supra). The Learned Judges, inter alia, held that the posting of the cheques at kolhapur could not be registered as delivery of the cheques to the accused ,at Kolhapur because Post Office of that place could not be treated in the circumstances of the said case as the agent of the accused to whom the delivery of the cheques had been made, at Lahore. The Supreme court in the said case held that payment was made at Lahore and misrepresentations were also made within British India. Therefore, the offence of cheating was committed within British India.
8. Mr. Mitra, learned advocate for the petitioners has strongly relied upon the decision of the Gujarat High Court in Narandas Vallabhram Parmar and Anr. v. The Union of India and Ors.-1978 ELT 695, which held that an appeal under Section 35 shall be deemed to have been filed on the date the same was sent by registered post and not on the date the appeal petition is received by the Collector. I am unable to apply the ratio of the said decision to the facts of the present case. The learned Judges in the -said case found as a fact 'when the appeal was invited by post, the post office being the agent of the authorities, the appeal was sent within the time and therefore, the Collector and the Government were patently wrong in holding that the appeal before the Collector was time barred'. Thus, the learned Judges held that by reason of the conduct of the authorities the post office became their agent. In the instant case, the petitioners have neither placed nor proved that the authorities had invited the appeals by post or that by their representation the postal authorities were constituted as their agents.
9. Mr. Mitra had also relied upon the Division Bench decision of the Orissa High Court in Sri Popsing Rice Mill v. Commissioner of Income Tax- : 17ITR420(Orissa) , which held that when a reference application is transmitted by registered post within the period of limitation even if there is delay in transmission, the application shall be considered to have been made in time. But the said decision in Sri Popsing Mill's case (supra), cannot be considered as good law because a Full Bench of the Orissa High Court in Govinda Chowdhury v. Commissioner of Income Tax- : 40ITR93(Orissa) , over-ruled the said decision. The Full Bench held that in view of the clear and mandatory provisions of Rule 7(3) of the Appellate Tribunal Rules, there was no room for any liberal construction and the applications which were sent by post in time but received by the Tribunal after the expiry of 60 days were rightly rejected by the Tribunal. The said Full Bench decision of the Orissa High Court referred to a number of reported decision in support of its views.
10. A Division of the Mysore High Court in Shanta Dal Devarae v. Commissioner of Income Tax- : 46ITR272(KAR) , also agreed with the said Full Bench decision in Govinda Chowdhury's case (supra), inter alia, holding that an application under Sec. 66(1) of the Income tax-Act, 1922 can be deemed to have been made only when that application is received in the office of the Appellate Tribunal. An application is posted before the expiry of the period of limitation but is received by the Tribunal after the expiry of the period cannot be held to have been within the prescribed period and is liable to be dismissed as time barred. The Division Bench of the Mysore High Court had also referred to the decision of the Allahabad High Court in Aligarh District Wholesale Cloth Dealers' Syndicate v. Cdmmissioner of Income Tax U.P. : 40ITR481(All) , which also similarly held that mere delivery of the application to the postal authorities within the period of limitation did not amount to compliance with the provisions of Section 66(1) because no application could be made to the Tribunal until it is presented to the Tribunal. The Division Bench of the Allahabad High Court had also relied upon the provisions of Rule 7(2) of the Appellate Tribunal Rules.
11. Mr. Mitra, appearing on behalf of the petitioners, has pointed out that the aforesaid decisions relating to presentation of reference petitions were rendered with reference to clear provisions of Rule 7(2) of the Appellate Tribunal Rules which expressly laid down that the date of the delivery by post shall be taken as the date of the presentation of the application. Neither S. 35 of the Central Excises and Salt Act nor the Rules made thereunder contain any provision similar to those of Rule 7 of the Appellate Tribunal Rules. In my view, this argument cannot prevail. Under the general law the postal authorities are not considered as agents of the addressee unless there is an agreement or a representation constituting the postal authorities as agents of the addressee. In the instant case, I have already pointed out that the petitioners have not established that the Central Excise Authorities had invited appeals under S. 35 by post or that there was any representation by them that such appeals may be sent by post.
12. In view of the foregoing findings, I hold that the respondents did not commit any jurisdictional error by holding that the appeals preferred by the petitioners under S. 35 of the Central Excises and Salt Act were barred by limitation.
13. I accordingly discharge these two Rules without any order as to costs.
Let the operation of this order be stayed for six weeks hence.