Decided on January 04,1991



K.Sankararaman, - (1.) M/s. Shalimar Industries Ltd., Howrah have filed this appeal against the Order-in-Appeal dated 15th February, 1990 passed by the Collector of Central Excise, Calcutta dismissing their appeal before him on the question of time limit alone without going into merits of the case.
(2.) Shri A.K. Bhowmick, learned Consultant represented them when the appeal came up for hearing. He referred to the submissions contained in their appeal memorandum. He stressed the fact that their original application for availing modvat credit had been only partially allowed and what was not allowed was without reference to them by grant of personal hearing. As they were not heard in the matter and as no speaking formal adjudication order was passed by the Assistant Collector they could not file an appeal against the Assistant Collector's letter. They, however, took up the matter with the department requesting for reconsideration of the matter and grant of personal hearing. They were informed by the Superintendent vide his letter dated 26-10-1989 that the order dated 6-10-1986 was a speaking order and the same could not be reviewed by the Assistant Collector and that they should file an appeal to the Collector (Appeals) if they fell aggrieved with the same. Then only they filed their appeal to the Collector (Appeals). He, however, rejected their appeal as time-barred treating the Assistant Collector's letter dated 6-10-1986 as the appealable order. This was no order at all and they cannot be made to suffer if they had not filed an appeal against it. He referred to the decision of the Tribunal in Prakash Fabricators & Galvanizers Pvt. Ltd. reported in 1988 (37) ELT 311 Cegat and submitted that the ratio therein, namely an adjudication order is void if passed in violation of the principles of natural justice would support their case. He also cited the following cases in support of his stand that the order of the Assistant Collector is non est in law, having been passed without granting personal hearing besides being non-speaking: (1) 1986 (23) ELT 14 Calcutta - Rungla Sons (P) Ltd. and Anr. v. Collector of Customs (2) 1981 (8) ELT 184 Madras - Nu Wood Pvt. Ltd. v. Superintendent of Central Excise (3) 1983 (13) ELT 1342 SC - East India Commercial Co. Ltd. v. Collector of Customs, Calcutta The learned Counsel pleaded that the appeal may be allowed. Heard Shri B. B. Sarkar, learned Departmental Representative on behalf of the respondent. He supported the impugned order.
(3.) I have considered the submissions made by both the sides and perused the records. I find that the appellants had taken up the matter with the Assistant Collector on receipt of the letter dated 6-10-1986 claiming that they were rightly eligible for deemed credit benefit for the stocks held by them on 1-3-1986 and requesting for review of the order. In case that was not agreed to an appealable order was requested for. Only on 10-6-1988 they were informed by the Superintendent (Technical) of the Divisional Office that there was no scope to review the case at the level of Assistant Collector and they could approach the appellate authority for necessary orders. On this they again wrote to the Assistant Collector on 21-6-1989 that an appealable order can be passed only by complying with the principles of natural justice and in the proper form of adjudication. As the order dated 6-10-1986 had been passed arbitrarily without hearing them, it could not be considered either as valid order or an appealable order. After two reminders they got a letter dated 26-10-1989 from the Superintendent (Technical) of the Division that the order dated 6-10-1986 was a speaking order and there was no scope for its review at that stage and hence issue of an appealable order was net considered necessary. It was indicated that the appellant could go in appeal against that order. It was then that they filed their appeal before the Collector (Appeals) who, however, rejected the appeal as time-barred.;

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