Registered-post filing and incomplete assessment: appeal treated as timely, while differential excise duty on sized yarn was upheld.

An appeal sent by registered post before expiry of limitation was treated as filed in time, because the governing practice contemplated dispatch by post and receipt after the last date did not by itself bar the appeal. The rejection of the appeal and revision on limitation was therefore unsustainable. On the duty issue, differential excise duty on sized yarn was held recoverable under Rule 10A where samples were drawn before final determination of yarn count, duty had been paid only tentatively, and the assessment remained incomplete until scientific testing was completed. The limitation objection succeeded, while the challenge to the duty demand failed.

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Issues: (i) whether the appeal to the Collector was within time when it was sent by registered post before expiry of limitation but received after the last date; (ii) whether the demand for differential excise duty on sized yarn was sustainable on the basis of incomplete assessment and Rule 10A.

Issue (i): whether the appeal to the Collector was within time when it was sent by registered post before expiry of limitation but received after the last date.

Analysis: The limitation under Section 35 ran from communication of the Assistant Collector's order. The appeal was posted within the prescribed period, and the governing practice contemplated dispatch of the appeal by registered post. In such circumstances, the filing could not be treated as barred merely because receipt by the authority occurred after expiry of limitation.

Conclusion: The appeal was within time and the rejection of the appeal and revision on limitation was unsustainable, in favour of the assessee.

Issue (ii): whether the demand for differential excise duty on sized yarn was sustainable on the basis of incomplete assessment and Rule 10A.

Analysis: The samples were drawn for testing before final determination of the count of yarn, and duty had been paid only tentatively. Once the test report showed that the yarn fell within the relevant higher count, the assessment remained incomplete until the scientific test was concluded. Rule 10A applied to such a case of subsequent sizing and authorised recovery of the difference between the duty already paid and the duty properly chargeable.

Conclusion: The demand of differential duty under Rule 10A was justified and this challenge failed, against the assessee.

Final Conclusion: The limitation objection succeeded, but the challenge on merits to the duty demand failed; the matter was sent back for disposal of the appeal on merits after treating it as within time.

Ratio Decidendi: Where an appeal is despatched by registered post within the prescribed period in circumstances showing that such mode of filing was contemplated, it cannot be rejected as time-barred merely because it is received by the authority after limitation expires; and where duty is paid before scientific verification necessary for final assessment, the assessment is tentative and differential duty may be recovered under the residuary provision applicable to incomplete assessments.

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