Customs, Excise and Gold Tribunal - Delhi
Assam Forest Products Pvt. Ltd. vs Collector Of Central Excise on 23 January, 1990
Equivalent citations: 1990(30)ECR487(TRI.-DELHI), 1990(47)ELT700(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. This is a transferred Revision application from Government of India which had been filed by M/s. Assam Forest Products (P) Ltd. (hereinafter called the appellants) under Section 36(1) of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act) against the rejection of their Review petition by the Collector of Central Excise, Shillong filed under Section 35A of the Act, vide his Office Order No. VI/14/Review petition 2/Val/80/22 dated 2-2-1981.
2. The brief facts of the case are that the appellants were manufacturing in their factory at Makum, Block Boards, Defective commercial plywood and Rejected tea chest panels among other products falling under Item 16B of Central Excise Tariff. It is the case of the appellants that they did not sell their products at the factory gate but were sold through different centres/branch offices situated in different parts of the country. They have submitted that the assessable values of the products have to be determined on the sale prices at which such regional offices sell the products. The assessable values of the products are not being ascertained at the time and place of removal when the duty of excise has to be paid but, however, they declare provisional assessable value of the goods based on manufacturing cost and manufacturing profit. They have submitted that they declared provisional assessable values of their subject products effective from 1-1-1978 and paid duty on the same accordingly at the time of removal of the same to the different selling centres subject to the finalisation of the same on verification of the sale prices.
3. They have submitted that a show cause notice dated 16-5-1979 was issued to them proposing higher assessable values of the products inclusive of all post-manufacturing expenses like octroi, freight etc. and also attaching the prices of prime products to the defective and rejected products cleared from the factory and subsequently sold through different selling centres.
4. The appellants have submitted that they could not produce before the Assistant Collector of Central Excise, the basic documents like sales bills under which the goods were sold to buyers at different selling centres during the material period, the vouchers showing transport costs like freight, octroi etc. and other post-manufacturing expenses, as it was not readily available as it had to be collected from different selling centres which entailed considerable time. The area where their factory is located namely, Tinsukia and the entire state of Assam was passing through violent agitation. They sought for time from Asstt. Collector of Central Excise, Dibrugarh but however he finalised the order in original.
5. The appellants have submitted that they could not file appeal against the said order as the factory had to be closed with effect from 25-8-1980 due to the agitation in Assam. The appellants have submitted that they were able to file a Review application dated 1-10-1980 as provided under Section 35A(2) of the Act within the requisite period to the Collector of Central Excise, Shillong, Assam. The said Review petition was not heard in person and the Collector did not pass any order on it but however, they were informed by the Asstt. Collector (Valuation), Customs and Central Excise, Shillong by his letter dated 2-2-1981, referring to their Review petition filed under Section 35A(2) of the Act, "that Collector does not consider your application fit for review of the order passed by the Assistant Collector of Central Excise, Dibrugarh".
6. Aggrieved by the order, they have filed Revision petition under Section 36(1) of the Act before the Government of India. It is this application which has been transferred to this Tribunal and is being treated as an appeal.
7. Shri N. Ramanathan, Consultant appearing for the appellants, submitted that due to the reasons explained in the appeal, they were prevented from appearing before the Asstt. Collector of Central Excise with all their evidence and records to prove their case. The Asstt. Collector, without giving sufficient opportunity to them, had proceeded to pass the orders. He submitted that as the factory was closed due to turmoil and serious agitation in Assam, the appellants were not in a position to file the appeal. However, they were able to file the Review petition under Section 35A(2) of the Act before the Collector of Central Excise making out all the grounds for consideration of their case. He submitted that the Collector should have given them a hearing and passed order giving reasons for rejecting their Review petition. He has not done so. But the communication of their petition's rejection alone was communicated to them through the Asstt. Collector. Now that their Revision petition under Section 36A(1) of the Act has been transferred to this Tribunal and being treated as an appeal, they are entitled to urge all the grounds made by them. He submitted that both the Review and Revision applications had been filed in time and that this Tribunal has to proceed to examine the case, for the purpose of remand, as they had made out sufficient grounds for their case to be considered afresh.
8. Shri G.V. Naik, Jt. Chief Departmental Representative appearing for the Revenue, opposed the prayer and submitted that the appellants had not preferred the appeal against the order-in-original and hence the order get confirmed. He has relied upon two citations i.e. the case of Madhukar Sahakar Sakhar Karkhana Ltd. v. Collector of Central Excise, Aurangabad [1985 (21) ELT 465] and Rajasthan Worsted Spinning Mills v. Collector of Central Excise, Jaipur -1986 (25) ELT 316.
9. Shri Ramanathan submitted that in the Revision petition, the Court can exercise its powers if the order had been passed without any whim or caprice. As the Collector had not given reasons for not reviewing the Asstt. Collector's order, it amounted to order refusing to review which was bad in law. It is well established principle of law that a Court or Tribunal or even Board can exercise its powers under review and revision, if the order in question has been passed without due regard to law, if the authorities have acted with whim or caprice. It can further interfere if sufficient cause had been shown to the Court/Tribunal/Board that they had been prevented from seeking the legal remedies due to reasons beyond their control not accountable to them.
We have heard both the sides, perused the records. The only question which requires consideration is as to whether the appellants are entitled to seek remand in this case.
10. In the case of Rajasthan Worsted Spinning Mills (supra) the appellants had filed Revision petition direct to the Central Govt. The Tribunal held that the appellants had an opportunity to file an appeal within three months before the Appellate Collector. The Tribunal had held "it cannot, therefore, be said that the order of the Asstt. Collector was one from which no appeal lay. It was only this order from which no further appeal lay and a Revision to the Central Govt. lay under Section 36. Neither the facts nor the law can be washed away just because the appellants chose to be non-vigilant and let the statutory time-limit lapse. No revision lay to the Central Govt. under Section 36(1) of the Act against the Asstt. Collector's order".
11. In the case of Madhukar Sahakar Sakhar Karkhana (supra) the appellants had filed a Revision petition to Govt. of India against the order of the Asstt. Collector. The Govt. had intimated the appellants that their remedy was to file an appeal against the order of Asstt. Collector, to the concerned Appellate Collector of Central Excise and not by Revision. Then they preferred an appeal before the Appellate Collector which was dismissed as time-barred. It was against the said order that the appellants have preferred a Revision petition to the Govt. which on transfer was dealt with and disposed off by the Tribunal as an appeal. The Tribunal had dismissed the appeal on the ground that there was no question of exercise or discretion in condoning the delay in preferring the appeal before the Appellate Collector. It further held that there was no question of the appellants being entitled to a period of one year for preferring a Revision petition to the Govt. against the order of the Asstt. Collector since no such revision had been provided for in law. Further, the Tribunal had found that the appellants therein had filed the revision to the Govt. against the order of the Asstt. Collector after expiry of nearly 11 and a half months after the receipt of the order.
12. We find that both the rulings are not directly on the issue. In this case, the appellants have not filed directly the Revision Petition to the Govt. of India against the order of the Asstt. Collector as the appellants have done in the above noted two citations. In the instant case, the appellants have explained the reason for not filing the appeal but their Review petition before the Addl. Collector filed under Section 35A(2) of the Act is in time. On perusal of the Review petition, it is found that they had made out sufficient grounds for setting aside the order of the Asstt. Collector in view of the extraordinary conditions in the state of Assam. Further, we notice that the Collector has not passed the Review order at all but only the Asstt. Collector by his letter dated 2-2-1981, has intimated about the Collector in not finding the Review petition fit to be considered. It is incumbent upon the Collector to give the reasons for not considering the Review petition. In that event, the order would have been sustainable. The appellants have filed the Review petition before the Collector and Revision petition before the Govt. of India well in time. In view of the settled law that where there is miscarriage of justice or in circumstances requiring interference, the Board/Court/Tribunal can call for records and reconsider the decision. It is admitted fact in the present case that the factory had been closed due to turmoil and agitation in Assam. The appellants have explained the reasons for non-appearance before the Asstt. Collector. They had also sought for adjournment on that ground. It is true that authority cannot endlessly wait but, however, the Collector should have reviewed the matter in the Review petition which has not been looked into at all and no order has been passed. The non-giving of reasons for rejecting the Review petition is sufficient for calling for our interference in this appeal. The appellants succeed in the appeal. The matter is remanded to the Asstt. Collector for de novo consideration. As the matter is very old, the Asstt. Collector shall dispose of the matter after giving notice to the appellants, within 4 months from the receipt of this order.