1998 (4) TMI 405 - AT - Central Excise

Revenue's Appeal Dismissed as Time-Barred; Bees Wax Classified Under Chapter 29

The Tribunal dismissed the Revenue's appeal on the grounds of being time-barred due to late filing, without delving into the merits. The classification of ... Appeal by Department - Limitation Issues Involved:1. Classification of Bees Wax.2. Maintainability of the appeal due to limitation period.3. Interpretation of the term 'communicated' under Section 35E(3).Detailed Analysis:1. Classification of Bees Wax:The respondents were manufacturing Bees Wax, initially classified under Heading 1507. They contested this classification, seeking reclassification under sub-heading 3003.20 with a nil rate of duty as pharmaceutical products. They provided a certificate from the Food & Drug Control authorities indicating that the Bees Wax met Indian Pharmacopoeia Standards. The Assistant Collector reclassified the product under Chapter 29, granting the benefit of Notification 234/86-C.E. and dropped the differential duty demand. The jurisdictional Collector filed a review application, asserting that the product should be classified under Heading 1507. The Collector upheld the Assistant Collector's decision, noting that Chapter Note 1(e) of Chapter 15 excludes 'prepared waxes' and that Bees Wax, conforming to pharmacopoeia standards, qualifies as a bulk drug under Notification No. 234/86-C.E.2. Maintainability of the Appeal Due to Limitation Period:The Revenue's appeal claimed that Bees Wax, whether or not refined, is specifically mentioned in sub-heading 1507.00 and cannot be termed as a bulk drug. The respondents raised the issue of the appeal's maintainability, arguing it was time-barred. The date of the impugned order was 29-8-1989, and the date of communication was 25-7-1991. The Bench directed the case records to be called for, revealing that the Collector (Appeals) office records were lost during an office move. The respondents argued that the order-in-appeal was communicated to the jurisdictional Collector's office, evident from the classification list approved on 18-5-1990. The Collectorate file showed the order was received before 25-3-1991, making the appeal filed on 24-10-1991 beyond the stipulated period.3. Interpretation of the Term 'Communicated' Under Section 35E(3):The term 'communicated' was debated, with the relevant section stating that an appeal must be filed within three months from when the order is communicated to the Collector of Central Excise. The Act does not define 'communicated,' but Section 37C speaks of 'service' of an order, which includes sending by registered post or affixing a copy to a conspicuous part of the business premises. Various interpretations of 'communicate' suggest it means to impart or transmit information, not necessarily requiring direct communication to the Collector himself but to his office. The Tribunal concluded that the communication to the Assistant Collector sufficed, and the appeal was time-barred as it was filed beyond the prescribed period.Conclusion:The Tribunal upheld the preliminary objection about the appeal being hit by limitation and dismissed the appeal from Revenue without addressing the merits of the case. The classification of Bees Wax under Chapter 29 with the benefit of Notification 234/86-C.E. was maintained.