1988 (8) TMI 240 - AT - Central Excise

Appeal allowed on limitation issue by Tribunal affecting parties' rights. Dissenting opinion noted.

COLLECTOR OF C. EX. Versus ORISSA CEMENT LTD.

COLLECTOR OF C. EX. Versus ORISSA CEMENT LTD. - 1988 (38) E.L.T. . 190 (Tribunal) Issues Involved:1. Maintainability of the appeal filed by the Collector, Bhubaneshwar.2. Determination of the 'relevant date' for computing the limitation period for the refund claim under Section 11B of the Central Excises and Salt Act.Issue-wise Detailed Analysis:1. Maintainability of the Appeal Filed by the Collector, Bhubaneshwar:The primary contention was whether the Collector, Bhubaneshwar, had the right to file an appeal against one of the findings of the Collector (Appeals) when the overall order was in favor of the Revenue.The Tribunal examined Section 35B(2) of the Central Excises and Salt Act, which allows the Collector of Central Excise to direct an authorized officer to appeal if an order by the Collector (Appeals) is deemed illegal or improper. The Tribunal noted that the impugned order had two findings: the limitation issue against the Revenue and the valuation aspect against the assessee. Despite the cumulative effect favoring the Revenue, the Tribunal considered whether an appeal could be made against an individual finding.The Tribunal referenced a decision in Hindustan Aeronautics Ltd. v. Collector of Customs, Bombay, where it was held that an appeal could not be filed if the appellant was not aggrieved by the order. However, the Tribunal distinguished the present case, noting that the finding on limitation was crucial and could set a precedent, thus affecting future cases. Therefore, it was important to challenge this finding for an authoritative pronouncement.The Tribunal concluded that the appeal was properly filed and maintainable, as the finding on limitation could prejudicially affect the rights of the parties and set a binding precedent.Separate Judgment:One of the members, V.T. Raghavachari, disagreed with the majority, arguing that the appeal was not maintainable. He emphasized that an appeal lies against an order that adversely affects the appellant, not merely against a finding. He cited various legal precedents, including the Supreme Court's observation in Ganga Bal v. Vijay Kumar, which highlighted the distinction between the right to file a suit and the right to appeal. He concluded that since the overall order was in favor of the Revenue, the appeal against a single finding was not maintainable.2. Determination of the 'Relevant Date' for Computing the Limitation Period:The key dates were the payment of duty on 27-6-1980 and the final assessment of the monthly RT 12 Returns on 11-1-1981. The respondents contended that the 'relevant date' for computing the limitation period should be the date of the final assessment, not the date of payment of duty. They relied on the Calcutta High Court judgment in Krishan Lal Thirani & Co. Ltd. v. Collector of Central Excise.The Tribunal referred to its earlier decision in Siemens (India) Ltd. v. Collector of Central Excise, which discussed the 'relevant date' in self-assessment cases. The Tribunal found that in the absence of provisional assessment, the date of payment of duty was the reference date for computing the limitation period. The Tribunal noted that the respondents did not allege any additional duty payment directed by the proper officer upon final assessment.Therefore, the Tribunal concluded that the 'relevant date' was the date of payment of duty, and since the refund claim was filed after six months from this date, it was barred by limitation under Section 11B of the Act. The finding of the Collector (Appeals) on the aspect of limitation was set aside.Separate Judgment:Another member, K. Prakash Anand, agreed with the majority that the appeal was properly filed and maintainable. He also concurred that the refund claim was time-barred as it was filed after the expiry of six months from the date of payment of duty.Final Decision:In view of the majority opinion, the Tribunal set aside the finding of the Collector (Appeals) on the aspect of limitation and allowed the appeal.