H.R. Syiem, Member (T)

1. The learned counsel for M/s. Tinplate Co., Mr. Mookherjee, said that this appeal is a non-existent one, because when the order of the Collector (Appeals) was passed in 1981, there was no provision for appeal to this Tribunal in line with Section 35-B of the Central Excises and Salt Act, 1944. The department filed the appeal in January, 1983 against the order, even though .there was no provision for such appeal when the order was passed by the Collector (Appeals). Therefore, no appeal lies under the present law. The Customs, Central Excise and Gold (Control) Removal of Difficulties Order, 1982 would not rescue the present appeal. He said that revision could have been made, but this was not made in time.

2. The learned SDR, Mrs. Zutshi on behalf of the department agreed with the submissions made by Mr. Mookherjee.

3. Both, however, are mistaken. On the day that the Tribunal began to operate on 11-10-1982, the right of appeal to it was conferred on all aggrieved persons against orders passed in the past. It is irrelevant to say that when the order was passed, the right of appeal was not available as this Tribunal had not been set up. If we take this argument, then even orders passed on the 1st of October, 1982 cannot be taken in appeal to the Tribunal, because on that day, the Tribunal had not yet started to function, and, therefore, the remedy of appeal to it had not been conferred on any aggrieved person. The question then would arise sphere would a person go against an order passed on the 1st of October, 1982 by the Appellate Collector? According to the two counsels for the department and for the opposite side, such person had no right of appeal.

4. The two counsels were also wrong in their understanding that the Removal of Difficulties Order, 1982 would not save an appeal if there was no right of appeal to the Tribunal. This order provides '.an appeal period of six months in respect of an order passed before the appointed day by the Board and the Appellate Collector under Section 35 of the Act as it stood immediately before that day. This order is not, as the two counsels suggest an enabling order that confers a right of appeal in respect of orders passed before the appointed day; it simply grants a longer time for appeal against orders passed by the Board and the Appellate Collector before the appointed day. It does not say passed when before the appointed day; only that the order should be passed before the appointed day. Evidently, if the order was passed more than six months before the date of filing the appeal, it would be time barred. Another appeal filed within, say, five months would have been time barred, but can be saved by this Removal of Difficulties Order.

5. The present appeal was filed in January, 1983 against order No 250/BR/81, dated 21-9-1981, passed by the Appellate Collector of Central Excise, Calcutta, and communicated on 14-12-1981. The appealing collectorate says in their letter dated 1-1-1983 that the reason they could not file the appeal in time was that they asked the Government on 13-8-1982 to review the order-in-appeal, but the Government declined by a letter dated 16-10-1982 as the Tribunal had been constituted by then. But asking for review on 13-8-1982 gave a clear two months time for issuing a review notice. Whether that notice would be in time or not is a matter we need not go into.

6. This appeal is time barred even under the extended limit allowed by the Removal of Difficulties Order, 1982.

7. Therefore, I reject it.

M. Santhanam, Member (J)

8. This is an instance regarding an order passed anterior to the appointed day (11-10-1982) and passed under Section 35 of the Act (as it stood immediately before that day), by the Appellate Collector of Central Excise. The order was admittedly passed before six months of the appointed day. Though, I have my own reservations about the views expressed by my learned brother in paragraphs 3 & 4, since the present appeal has been filed