ORDER
G. Sankaran, Sr. Vice-President
1. This is an appeal against Order No. 41/81 dated nil passed by the Central Board of Excise and Customs on an application dated 17-11-1980 filed before the Board by M/s. Bhavani Waste Cotton Spinning Mill seeking Revision of Order-in-original dated 21-3-1980 passed by the Collector of Central Excise, Pune. As seen from the impugned order, the application was received in the Board’s office on 27-11-1980. Since no appeal under Section 35 of the Central Excises and Salt Act (“the Act”, for short) had been filed by the assessee against the Collector’s order, the Board dismissed the Revision Application holding that Section 35A providing for Revision Applications could not be used as a means to circumvent the statutory limitation of three months contained in Section 35 of the Act for preferment of appeals. The Board further observed that there had been no obvious mis-carriage of justice which needed to be corrected invoking Section 35A of the Act.
2. We have heard Shri S.C. Puri, Advocate, for the appellants and Shri Vineet Kumar, Sr. D.R., for the respondent.
3. Shri Vineet Kumar submitted that, for the reasons stated in the impugned order, the Board had correctly dismissed the application for revision of the Collector’s order. On the other hand, Shri Puri, Counsel for the appellants, strongly urged that the fact that an appeal was not preferred within the limitation in Section 35 of the Act would not act as a bar against a revision application being filed under Section 35A.
4. On consideration of the submissions made by both sides, we are of the view that the Board was in error in holding that the Revision Application was not maintainable. In this connection, we note that Section 36 providing for revision by the Central Government, on an application being made by any person aggrieved by any decision or order passed under the Act or the Rules made thereunder by any Central Excise officer or the Board, specifically stated that the decision or the order should be such that no appeal lay from it. On the other hand, Section 35A providing for similar revision by the Board did not contain a stipulation that the decision or order sought to be revised shall be such that no appeal lay from it. In the circumstances, the Board’s order is not correct and deserves to be set aside on that score. Since the substantive issue involved in the present matter stands concluded, as pointed out by Shri Puri, Counsel for the appellants, and as agreed to by Shri Vineet Kumar, Sr. D.R., we propose to dispose of the matter on merits.
5. The issue arising for determination is whether “Yellow Pickings” is waste cotton or cotton waste. If it is cotton waste, cotton yarn manufactured out of such “Yellow Pickings” would be entitled to the benefit of duty exemption granted under Central Excise Notification No. 95/61 dated 1-4-1%!. The Collector held that the “Yellow Pickings” were not cotton waste and the cotton yarn manufactured by the appellants were not eligible for the exemption. In order No. 1013/86-D dated 26-12-1986, this Tribunal found in favour of the assessee in a similar matter (Appeal No. 1430/81-D – Collector of Central Excise, Pune v. Shree Vyankateshwar Waste Cotton Spinning Mills). Following the ratio of the said decision, we hold that, in the present instance also, the cotton yarn manufactured by the present appellants out of “Yellow Pickings” was eligible for duty exemption. Consequently, the penal action taken against, and the duty demanded from, the appellants cannot be sustained and are set aside. The appeal is allowed.
