K.L. Rekhi, Member (T)

1. The appellants filed a refund claim on 1-12-78, some 20 months after the payment of duty. The Assistant Collector rejected it on merits as well as on the ground of time bar (of 6 months) under the erstwhile Rule 11 of the Central Excise Rules, 1944. The appellants received the Assistant Collector's order on 29-3-80. Under the then Section 35 of the Central Excises and Salt Act, 1944, the appellants could file an appeal to the Appellate Collector within three months. The appellants, however, filed the appeal late on 25-9-80. The Appellate Collector rejected it as being out of time. Aggrieved by this order, the appellants filed a revision application before the Central Government which, on transfer to this Tribunal, is now before us as the subject appeal.

2. During the hearing before us, the appellants pressed for only one point : that their subject application to the Central Government was for revision of the Assistant Collector's order and not for revision of the Appellate Collector's order. They stated that under Section 36(1) of the Act, revision before the Central Government could be filed against any decision or order passed under the Act or the Rules by any Central Excise Office "and from which no appeal lies". The appellants argued that once the time limit of three months for filing appeal before the Appellate Collector under Section 35 was over, no appeal lay against the Assistant Collector's order and they could, thereafter, file a revision direct to the Central Government.

3. We have carefully considered the matter. We find that the appellants' plea is neither based on facts nor on law. For fact, we observe that the revision filed by them showed as its title "Revision against the order of the Appellate Collector..." and it was filed by the appellants after their appeal had been disposed of by the Appellate Collector. As regards the legal position, under the scheme of the Act and the Rules, as then in force, against the Assistant Collector's order, an appeal lay to the Appellate Collector under Section 35 and a revision lay to the Collector under Section 35A. It cannot, therefore, be said that the order of the Assistant Collector was one from which no appeal lay. The appeal did lie under Section 35 and the appellants actually filed such an appeal. The order passed by the Appellate Collector was an order passed in appeal (MANU/SC/0038/1956 : 1956 SCR 166 - M/s. Mela Ram and Sons v. C.I.T. Punjab - Full Bench judgment of the Supreme Court) and it was only this order from which no further appeal lay and only a revision to the Central Government 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 Government under Section 36(1) of the Act against the Assistant Collector's order.

4. Since no other point was pressed before us, we find no merit in the appeal and dismiss it.