ORDER
J.H. Joglekar, Member (T)
1. The respondents in this case were manufacturing Bees Wax. This product was earlier classified under Heading 1507. The assessees contested this classification and later sought classification under sub-heading 3003.20 with nil rate of duty as pharmaceutical products. They substantiated their claim by production of a certificate from the Food & Drug Control authorities to the effect that Bees Wax produced by them was of Indian Pharmacopoeia Standard. The Assistant Collector classified the product under Chapter 29, permitting benefit of Notification 234/86-C.E. and also dropped the demand for differential duty. The jurisdictional Collector then caused review application to be filed again this decision of the Assistant Collector, claiming, inter alia, that the product merited classification under Heading 1507 only. The Collector in his impugned order observed as under:
“However, on careful consideration, it is seen that Chapter Note l(e) of Chapter 15 excludes ‘prepared waxes’, medicaments etc. from the perview of this Chapter. The product under consideration confirms to various pharmacopoeia standards. Further Commissioner of Food and Drugs Control, Gujarat as well as Drugs Controller (India) have certified that the product ‘Bees Wax I.P.’ as Bulk Drugs. These opinion cannot be brushed aside. As contended by the department Bees Wax is composed of a mixture of several chemicals, is wrong. Bees Wax is produced by the bees by biological process in Bees body. Bees Wax when processed undergoes natural oxidation by oxidation of denylpalmitate Ester Yields Isomers and Ester of Myrieyl Hydrogenate i.e. to say two isomer of C.15 and therefore as per the Chapter Note l(b) of Chapter 29 Bees Wax is classifiable under Chapter 29. Further definition of bulk drug vide Notification No. 234/86-C.E., dated 3-4-1986 is very clear as it says any chemical or biological or plant product confirming to pharmaceutical standards used for the diagnosis, treatment, mitigation or prevention of disease in human beings or animals and used as such or as ingredients to any formula of pharmacopoeia. Therefore, it cannot be denied that Bees Wax IP is bulk drug or medicament. Further in the case of respondents it is seen that they purchase crude Bees Wax from open market and they simply carry out processes of filtering and purifying so as to produce Bees Wax confirming to various pharmacopoeia standards. Heading 16.07 covers “Bees Wax whether or not refined and therefore, even if the product is held to be classifiable under Heading 15.07 no duty can be collected from them.
In view of the above discussions, I do not see any reason to interfere with the impugned orders passed by the Asstt. Collectors which are correct in law and in fact, I therefore, reject the two applications filed by the department.”
2. In this appeal from the Revenue, it has been claimed that Bees Wax, whether or not refined, is specifically mentioned in sub-heading 1507.00. It is, further, claimed that since Bees Wax is only a pharmaceutical aid, it cannot be termed as bulk drug. Referring to Interpretative Rule 3A, it is claimed in view of the specific nomenclature as “Bees Wax” therein, sub-heading 1507.00 stands attracted.
3. Ld. Advocate, Shri A.C. Jain had earlier raised the issue of the maintainability of this appeal. In the department’s appeal, the date of the impugned order was shown as 29-8-1989 and the date of communication (receipt) was shown as 25-7-1991. It was claimed that prima facie on this ground, the appeal was time barred. The Bench, thereafter, directed the case records to be called for. In terms of the order of the Bench dated 8-9-1997, photocopy of the Collector file No. V(Misc) 2-81/91/RC duly attested was filed. As regards the query about the Collector (Appeals) office records showing the date of despatch of the order therefrom to the jurisdictional Collector’s office, Shri H.K. Jain, ld. SDR submitted that as per the communication received from the Collector (Appeals), the records were lost when the office was moved.
4. Shri A.C. Jain, ld. Advocate stated that order-in-appeal dated 17-8-1989 was despatched on 28-8-1989 by Collector (Appeals) office. As per the endorsement shown the order, copies were also despatched to C.C.E., Baroda and the C.C.E., Dvn. V, Vadodara. Vide this order, the decision of the Asstt. Collector to grant them benefit of Notification 234/86 was up-held. The asses-sees filed RT 12 for the month of September, 1989 on 4-10-1989 in which this decision was referred to and also filed on 14-12-1989 the refund claim. Subsequently also, RT 12 were filed and latter classification list dated 20-3-1990 was also approved on 5-3-1991, the assessees sent a reminder to the Collector enclosing therewith a copy of Order-in-Appeal.
5. The Collectorate file, extracts of which were submitted by the ld. DR., commences from this point. The notes refer to this letter and also mention receipt of a copy of the order. The early notes show that the copy of the appeal order was not received in the Collectorate. A copy was then asked for from the A.C.’s office. A Note dated 23-4-1991 shows that the copy of the Order-in-Appeal, sent by the A.C. was received and read. Even then another copy was called for from the office of the Collector (Appeals), which was despatched vide letter dated 22-7-1991. The order was once again analysed and decision to file an appeal was taken on 16-10-1991.
6. It was submitted by Shri A.C. Jain, that the appeal was clearly hit by limitation. It is his case that in the classification list No. 296/89, which was approved by the Assistant Collector on 18-5-1990, the classification for Bees Wax was claimed under Chapter 29 “as per O/A No. GSM-1778/89-BRD, dated 17-8-1989 passed by the Collector of Central Excise (Appeals), Bombay”.
It is his case that the approval of this price list would show that the decision of the Collector (Appeals) stood communicated to the Collector. On the other hand, Shri H.C. Jain, ld. DR states that wording “communicated” in Section 35E(3) should be so interpreted as to mean that the impugned order was communicated by the Collector (Appeals) to the jurisdictional Collector in the proper channel. It is his contention that knowledge does not amount to communication. It is his claim that the Collectorate’s file very clearly shows that the impugned orders had not been received by the Collector and that when the copy was ultimately received, the appeal was filed within time from that date.
7. The merits of the case were, thereafter, argued by Shri Jain.
8. We have carefully considered the submissions. The first point for consideration is whether the appeal was barred by limitation. The wording of the relevant section at the material time was as follows :-
“Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Central Excise, or as the case may be, the other party preferring the appeal.”
9. The coverage of the phrase “communicated” is not spelt out in the Act. Section 37C speaks of “service” of an order. The Section reads as under :
“(1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, –
(a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due, to the person for whom it is intended or his authorised agent, if any;
(b) if the decision, order, summons or notice cannot be served in the manner provided in Clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons, or notice, as the case may be, is intended;
(c) if the decision, order, summons or notice cannot be served in the manner provided in Clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.
(2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is intended or delivered by post or a copy thereof is affixed in the manner provided in Sub-section (1).”
10. In the present case, although the order so that a copy thereof was marked to the jurisdictional Collector, we are unable to verify the actual duty and also the modality of despatch in view of the submission that the relevant records of the office of the Collector (Appeals) are lost.
11. The word “communicate” has been interpreted in several publications. The extract from Law Lexicon -1997 Edition, Wadhwa & Co., Nagpur, reads as under:
“Communicate. The expression ‘communicate’ in Section 39(2) is not synonymous with the expression ‘publish’ which means to make public, it means “to bestow, convey, make known, recount, to import as to communicate information to anyone”. Shri Gurbachan Singh v. Smt. Jagiro – AIR 1956 Pun 254. [Criminal Procedure Code, 1898, Section 39(2)].
“It means to impart, confer or transmit information. Where a communication is sent by the authority and goes out of its control it must be held as having been communicated no matter whether the intended person actually received it. “State of Punjab v. Khemiram, AIR 1970 SC 214 at p. 219. (Punjab Civil Services (Punishment and Appeal) Rules, 1952, R. 3.26(d).
1. To give by way of information; to make known (Section 3, Indian Contract Act and Article 22(5), Const.); 2. to speak; to convey information (S.177(f), Army Act).”
12. In the judgment in the case of Nand Lal Nichani reported in (1989) 10 ATC 113, the word “communicate” is defined as to impart, to reveal and to transmit.
13. Concise Oxford Dictionary also uses the synonyms such as, transmit, impart, convey.
14. The common meaning assigned to the word “communicate” is transmission or imparting or certain information by one person to another. The interpretations do not stipulate as to whether the communication is to be direct between two persons or whether it includes the situation, where the information is relayed from another source. Therefore, the claim of the ld. DR that it was to be by way of a direct communication alone is not convincing.
15. If one decides to take a rigid attitude, it could be said that in terms of Section 35B, the person to whom communication is made, must be the Collector alone and not any officer subordinate to him (although such a claim was not made by the DR). It is obvious that what is meant in this section by the word “Collector”, in reality is the “office of the Collector”. It is correct that in exercising the jurisdiction under certain provisions such as the proviso to Section 11A whereby serious aspersions are cast on an assessee, the Collector himself had to examine and sign the show cause notice, when the law stood thus. The same would the case where a Collector is exercising his powers under Sub-section (2) of Section 35B. These provisions are extraordinary and the consequences thereof are far reaching. But in several other provisions, even though they specify that certain powers thereunder are to be administered by Collector, under Rule 5 of the CESA, such powers can be delegated by him to officers subordinate to him.
16. Such delegation is necessary because a Collector in the field cannot function at all if all the authorities vested in him under the Act or under the Rules are to be exercised directly by him.
17. Therefore, in the situation on hand, it is to be accepted and held that the communication need not necessarily be made to the Collector himself but that it can be made to his office.
18. Now the Collector’s office at Headquarters has a number of sections. There would be a section engaged in examination of Orders-in-Original passed by officers subordinate to the Collector and also Orders-in-Appeal passed by the Collector (Appeals). Where the order so issued the assessee may furnish the copies thereof to other sections also. In the present case, the impugned order of the Collector (Appeals) was communicated to the jurisdiction-al Assistant Collector vide the endorsement of the classification list which was to be effective on 20-3-1990 and which the jurisdictional Assistant Collector Signed on approval on 18-5-1990. Thus, on this date an office of the Collector was in receipt of the knowledge of the contents of this order. Calculating from this date, the appeal is certainly barred by limitation.
19. The ld. DR has claimed that the copy sent by the Collector (Appeals) vide his letter dated 20-7-1991 reached the Collector’s office on 25-7-1991 and the appeal was filed on 24-10-1991. We have seen the photocopy of this letter. The receipt, duly stamped, shows that it was received on 25-7-1991. However, the photocopy of the Collectorate file shows that the text of the appeal itself was received earlier. Following notes bear witness to this effect:
Although the date is not easily visible, the next page is dated 25-3-1991. Therefore, it is clear that the Collector’s office was in receipt of a copy of the impugned order before 25-3-1991. Even then he thought it proper to have a copy from the A.C. and yet another copy from the Collector (Appeals), which was received on 25-7-1991. Even assuming that a communication received by an Assistant Collector of a Division does not satisfy the requirement of Section 35B (3), we find that the Collector’s office was in receipt of a copy of the same order by virtue of the assessees’ letter dated 5-3-1991. From this date, the date on which the appeal was filed is clearly beyond the period stipulated in Section 37B(3).
20. Although Section 35B(5) empowers the Appellate Tribunal to admit late filing of an appeal on satisfaction that there was sufficient cause for not submitting it within the prescribed period, we find that no application has been moved before us for Condonation of Delay.
21. We, therefore, uphold the preliminery objection about the appeal being hit by limitation, and dismiss this appeal from Revenue without going into the merits of the case.