V.T. Raghavachari, Member (J)

1. In connection with manufacture and clearance of safety matches, the appellants M/s Wimco Ltd. had applied for set off of excise duty paid on goods falling under tariff item 68 used as inputs in the manufacture of matches by them. They relied upon Notification N0. 178/77-CE dated 18-6-1977 in this connection. The Assistant Collector of Central Excise Dhubri rejected the said claim under his order dated 4-6-1980 and made reference to Notification No. 201/79-CE dated 4-6-1979 and Notification No. 264/79-CE dated 29-9-1979 in this connection. He pointed out that the goods had been already cleared by the appellants without availing of set off and under Notification No. 201/79 no cash refund was admissible and that under Notification No. 264/79 set off was not available as duty had been paid by the appellants through banderols. Prior to the date of the said order (that is) on 20-5-1980, the appellants had sent a letter to the Collector of Central Excise, Shillong referring to their claim for set off pending with the Assistant Collector and seeking his intervention in that matter for an early settlement of the said claim. In response to that letter the Collector sent a reply dated 27-6-1980 (i.e.) after the order of the Assistant Collector, mentioning therein "I am directed to say that since you did not avail of set off of duty at the time of removal of the finished matches no relief by way of refund or adjustment in the PLA can be granted to you. However you may approach the Central Board of Excise and Customs New Delhi for a special permission in the matter". This letter had been signed by Deputy Collector on behalf of Collector.

2. Subsequently the appellants filed an appeal before the Central Board of Excise and Customs referring to the facts mentioned earlier, and stating (ground N in the appeal) that as the Collector had also given his views and opinion amounting to a decision, through the letter of the Deputy Collector, the appeal was being filed for quashing the order of the Assistant Collector as also the "said letter" of the Collector and allowing the claim of the appellants. This was rejected by the Central Board under order dated 31-10-1980. The order read "The Board observes that in this case, on the same issue a formal appealable order had also been passed by the Assistant Collector of Central Excise, Dhubri. The appellants should have gone in appeal against that order by duly following the instructions given in the preamble to the adjudication order instead of referring the matter to the Collector. Accordingly the Board rejects this appeal as not made to the proper authority". The appellants preferred a revision petition to the Central Government against that order of the Central Board. The same is now before us, on transfer, as this deemed appeal.

3. On the appeal being taken up Shri V.M. Doiphode raised a preliminary objection that the appellants could not prefer an appeal direct to the Central Board against the order of the Assistant Collector and that the latter of the Collector would not be an order against which an appeal would lie and therefore the appeal to the Board was incompetent and, in the circumstances, no revision could have been filed against the communication by the Board dated 30-10-80. Shri Doiphode contended that even this communication dated 30-10-1980 would not be an order. According to him the letter of the Collector dated 27-6-1980 as well, as the communication of the Board dated 30-10-80 were not orders but merely administrative communications. Shri V. Lakshmikumaran, Advocate for the appellants, on the other hand, claimed that the letter of the Collector dated 27-6-1980 was an order which in its own effect denied relief to the appellants and could therefore be questioned in an appeal against the same. He pointed out that in its order dated 30-10-1980 the Central Board also referred to the letter of the Collector as an order of the Collector and the the decisi