S.V. Maruthi, Member (J)

1. The appellants manufacture Asbestos Cement Products. They paid duty on these products without excluding the expenses incurred on freight. On realising the mistake, they preferred 12 refund claims totalling to Rs. 1,72,27,253.00. The Assistant Collector rejected the refund application. The Collector allowed the appeal filed by the appellants and remanded the same to the Assistant Collector for quantification of the actual freight incurred by the appellants and also for verification of the refund claims. Accordingly, the Assistant Collector, verified the actual freight and the refund claims and sanctioned a refund of Rs. 49,57,243.57 out of the total amount of Rs. 1,72,27,253.00 by his order dated 11-5-1987.

2. Against the refund sanctioned by the Assistant Collector, the Collector, in exercise of the powers, conferred under Section 35E(2) of the Central Excises & Salt Act, 1944, directed the Assistant Collector to file an appeal to the Collector alleging, inter alia, that

"against serial No. 6 in annexure 'D' 'amount due' is shown as Rs. 57,38,009.42. This is not correct. Correct figure comes to Rs. 57,28,009.42. This has resulted in excess refund of Rs. 8,639.25 because correct figure of 'net refund due' at serial No. 8 would come to Rs. 49,48,604.32 (as against Rs. 49,67,243.57). Correct figure against serial No. 7 would be Rs. 7,79,405.10 as against Rs. 7,80,765.85. Excess refund of Rs. 8,639.15 needs to be recovered."

In other words, the Collector found that there is an excess refund of Rs. 8,639.25 which occurred on account of arithmetic mistake in the calculations and, therefore, directed the Assistant Collector to file an appeal under Section 35E(2) of the Act.

3. Accordingly, an appeal was filed and the Collector set aside the order of the Assistant Collector. Hence, the appeal before us.

4. It is contended by Shri Dave that the Collector has set aside the entire order of the Assistant Collector who granted refund of Rs. 49,57,243.57 while the Collector, under Section 35E(2) directed the filing of an appeal only in respect of excess refund of Rs. 8,639.25. Sh. Asthana, in reply appearing on behalf of the Department, brought to our notice the order of the Collector under Section 35E(2) and pointed out that the appeal should be confined only to the excess refund of Rs. 8,639.25.

5. It is next contended by Sh. Dave that the refund cheque was issued to the appellants on 19-5-1987. Therefore, under Section 35E(2) of the Act, the appeal of the Collector should be filed within six months from the date of the refund whereas the authorisation under Section 35E(2) was issued on 4-5-1988 and the order of the Collector was passed on 13-4-1989 and, therefore, it is beyond the period of limitation provided under Section 11A of the Act. In support of his contention, he relied upon Collector of Central Excise v. Universal Radiators Ltd. [MANU/CE/0194/1988 : 1988 (37) E.L.T. 222 (Tribunal)].

6. Shri Asthana, appearing on behalf of the Department contended that under Section 35E(2), the Collector is authorised to direct the adjudicating authority, subordinate to him to apply to the Collector for the determination of points arising out of the decision or order, as may be specified by the Collector of Central Excise in his order and under sub-section 3, the order under sub-section 2 should be made before the expiry of one year from the date of the decision or order of the adjudicating authority and under sub-section 4, the authorised officer has to make an application within a period of three months from the date of communication of the order under sub-section 2 of the Section 35E. Since the authorisation under Section 35E(2) was made within one year from the date of the decision of the Assistant Collector sanctioning the refund, the appeal is within time. He submitted that the limitation prescribed under Section 11A is not applicable to the appeal to be filed under Section 35E(2). In support of his contention, he