- (1.) Having considered the order of the Customs Excise and Gold (Con- trol) Appellate tribunal, we are of the opinion that perhaps there have been certain amount of latches on behalf of the appellant. Taking, however, an overall view and having regard to the possibility of the condition prevailing at that point of time as urged by the counsel for the appellant before the tribunal,. in the interest of justice it will be right and proper to condone the delay in filing the Revision Application and the order of the tribunal is accordingly set aside. The appeal is allowed. The appeal has to be heard by the tribunal on the merits as expeditiously as possible. Copy of CEGAT (Special bench 'c') Order No. 366/88-C, dated 25/4/1988 in Appeal no. CD/sb/t/224/8-C and passed by S/shri S. D. Jha. Vice-President (J) and p. C. Jain. Member (T) in the matter of HARSHA TRACTORS ltd. v. COLLECTOR OF CUSTOMS[order per: S. D. Jl) a, Vice-President (J) ].-This order disposes of a preliminary objection by the respondent that the revision application now transferred to the tribunal to be disposed of as an appeal presented before it is barred by limitation and the application of the appellants for condonation of delay. The revision application now appeal was first fixed for hearing on 26/10/1987. Preliminary objection as to limitation was then raised by Shri Sundar Rajan, JDR for the respondent. Shri Rangaswamy, learned advocate for the appellants while maintaining that the appeal is not barred by limitation without prejudice to this contention agreed to file an application for condonation of delay - that is how the present application for condonation of delay of 104 days in presenting the revision application now appeal has been filed.
(2.) At the hearing Shri M. A. Rangaswamy, learned Advocate for the appellants submitted that the order of the Appellate Collector of Customs, Calcutta, dated 18/7/198181 Was received by the appellants on 14/8/1981. However, in terms of the order the appellants paid duty as levied on 4/12/1981 and Filed a claim for refund of the same on 21/5/1982. He also submitted that as assessment dated 21-11-1981 on the ex-bond bill of entry as witnessed from the bond executed before clearance was itself provisional re-assessment would not be barred by limitation until final assessment is made. He also submitted that when the amount of duty is not quantified in the assessment order, the time for filing an appeal commences running only after an order quantifying the duty demand is served on the assessee. For this argument he relied on government of India decision in Re: Goodgood, Manufacturers - 1980 ELT 786 (GOI) and Sri Venkateswara Cooperative Sugar Factor) Ltd. v. Collector of central Excise, Hyderabad - 1985 (20) ELT 321 (Trib. ). Reference was also made to 1978 ELT (J 416) Assistant Collector of central Excise, Calcutta v. National Tobacco Co. of India Ltd. as to meaning of the words levy and collection and levy and assessment difference between them.
(3.) On going through the two decisions it is seen that the decisions relate to ad-Jurisdiction orders and not orders passed in appeal. Clearly the ratio of these two decisions would not apply to the present case because be appellants even before duty was quantified by the Assistant Collector of Customs by his order dated 17-6-80 despatched on 23-9-80 has presented appeal to the Appellate Collector of Customs, Calcutta. After the Appellate Collector has passed orders not in adjudication but in appeal, the appellants cannot urge that time for filing revision or appeal should run not from the date of communication of the order which the law provides but from the date of service of demand quantifying the duty which the two decisions in the peculiar facts and circumstances of the cases lay down. We reject this argument.;