ORDER
P.K. Kapoor, Member (T)
1. These two appeals and the corresponding applications of condonation of delay arise out of two orders passed by the Assistant Collector, Central Excise, Div-II, Noida. Since the issues involved in both these cases are common they are disposed of by this common order.
2. The appellants have filed the appeals against the order-in-original No. V-15(46)/OFF/Sheela Foam/90/1776 dated 20-3-1992 and V(418)/OFF/89/1772 dated 20-3-1992 passed by the Assistant Collector, Central Excise, Div-II, Noida. In consequence of the order-in-appeal No. 183-184/93 dated 31-3-1993 passed by the Collector (Appeals), Central Excise, Ghaziabad dismissing the appeals filed before him against the said order passed by the Assistant Collector on the grounds that the order having been passed under the directions of the order-in-original No. 34-Collector/1990 issued by the Collector, Central Excise, Meerut the appropriate forum for appeal was Tribunal and not the Collector (Appeals).
2A. On behalf of the appellants learned advocate Shri H.S. Sharma along with advocate Shri Pravin Sharma appeared before us. Shri H.S. Sharma stated that the preamble to the order passed by the Assistant Collector, Central Excise, Div-II, Noida fairly indicated that the order was passed under Section 35 of the Central Excises and Salt Act, 1944 and an appeal against it lies to the Collector (Appeals), Central Excise, Ghaziabad. He added that in pursuance of these directions the applicants/appellants preferred appeals to the Collector (Appeals) against the orders passed by the Assistant Collector who without going into the merits of the appeals rejected them on the grounds that the Assistant Collector’s order having been passed in compliance of the directions issued by the Collector, Central Excise, Meerut in his adjudication dated 31-12-1990 the appeal against the said order lies to the Tribunal and the Collector (Appeals) did not have any jurisdiction. Shri Sharma stated that the appeals against the orders passed by the Assistant Collector having been filed before the Collector (Appeals) within the stipulated period of 3 months in terms of the directions given in the preamble to the order the delay of 9 months and 9 days in filing the appeal before the Tribunal was condonable, or the facility of reference he gave following chronology of events :
25-1-1990 - Date of initial show cause notice.
31-12-1990 - Date of order in original No. 36-Collector/1990 passed
by the Collector, Central Excise, Meerut.
29-10-1991 - Date of issue of notice by the Assistant Collector for
personal appearance and producing defence material.
20-3-1992 - Date of issue of order in original by the Asstt. Collector.
2-4-1992 - Date of receipt of order-in-original of the Assistant
Collector by the appellants.
1-5-1992 - Date of filing of appeal against the order of the Asstt.
Collector, Central Excise, Ghaziabad.
17-11-1992 - Date of personal hearing attended before the Collector
Appeals, Central Excise, Ghaziabad for pleading defence.
31-3-1993 - Date of the order in appeal passed by the Collector
Appeals, Central Excise, Ghaziabad.
6-4-1993 - Date of receipt of order-in-appeal by the appellants/
applicants.
12-4-1993 - Date of filing of the appeal before the Tribunal.
3. Learned counsel Shri Sharma reiterated that the delay in filing the appeal was entirely due to the fault of the department since the appellants were misguided by the direction given in the preamble to the order passed by the Asstt. Collector. He contended that under these circumstances the delay was condonable. In support of his contention he placed reliance on the following case law :
(i) Avtar Kishan Das v. CIT, 1983 (133) ITR 338 (Del.)
(ii) Chandra & Sons (P) Ltd. v. Union of India, 1992 (57) E.L.T. 537 (Cal.)
(iii) Tata Oil Mills Co. Ltd. v. Collr. of Cus., 1990 (50) E.L.T. 257 (Tribunal)
(iv) SAIL v. Collector of Customs, Calcutta; 1987 (31) E.L.T. 455 (Tribunal) (v) SAIL v. Collector of Customs, Calcutta; 1987 (31) E.L.T. 860 (Tribunal)
On the ground that they were prevented by sufficient cause for filing the appeals before the Tribunal the learned counsel pleaded that the delay of 9 months and 10 days may be condoned and appeals may be heard.
4. On behalf of the respondent learned SDR Shri M.K. Jain stated that it was well settled that in cases where the orders are passed by the lower authorities in pursuance of the directions issued by the Collector the appeals lie to the Tribunal. In support of his contention he cited the Tribunal’s decision in the case of K.S. Diesel Ltd. v. CCE reported in 1983 (14) E.L.T. 1845. He contended that under these circumstances the appellants could not claim that they were misled by the directions given in the preamble to the orders passed by the Assistant Collector. He, therefore, pleaded for rejection of the application for condonation of delay and also the appeals.
5. We have considered the submissions made on behalf of both sides. The orders appealed against by the appellants were received on 2-4-1992 hence the appeal to the Tribunal should have been filed by 2-7-1992. The appeals were actually received in the registry on 12-4-1993. Hence there is a delay of 9 months and 10 days in filing the appeals. The appellants’ case is that they had filed the appeals before the Collector (Appeals), Central Excise, Div.-II, Ghaziabad in pursuance of the direction given in the preamble to the order passed by the Assistant Collector, according to which, appeal against the order was to be filed before the Collector (Appeals). They have stated that the Collector (Appeals) without going into the merits of the appeals dismissed them for want of jurisdiction holding that the orders appealed against had been passed by the Assistant Collector in pursuance of the directions given by the Collector, Central Excise, Ghaziabad in his adjudication order No. 34/Collector/1990 dated 31-12-1990 and accordingly, the appeals against the said order passed by the Assistant Collector could be heard only before the Tribunal. In seeking the condonation of delay the appellants have cited a number of decisions wherein it has been held that misdirection given in the preamble or the docket of the order-in-original would be sufficient cause for condonation of delay. On the other hand the respondent has opposed the application for condonation of delay on the ground that delay in filing the appeals in these cases is due to the negligence on the part of the applicants/appellants who should have preferred the appeals to the Tribunal since it was known to them that the orders appealed against were passed by the Assistant Collector in pursuance of the direction given by the Collector.
6. We find sufficient force in the contention of the learned DR since it has been held by the Tribunal that an order of the lower authority to enforce the demand notice already issued by the Collector would not be an independent order or the decision and the appeal against such consequential order of the lower authority would lie to the Appellate Tribunal because the basic order will be that of the Collector. Para 16 of the Tribunal’s order being relevant is reproduced below :
“Against the position as thus simply stated, arguments have been put forward, some by the learned Technical Member and some by the Departmental Representative. The learned Technical Member has observed that though the Collector’s order orders recovery of duty in terms of Section 72(1), there is no order from the Collector in terms of Sub-section (2). With due respect, I am unable to agree that the Collector’s order is only under Sub-section (1) of Section 71 of the Customs Act. The relevant sentence, which has been reproduced above, makes reference to Section 72 and not any Sub-section thereof. Further, the two letters dated 1-9-1982 and 1-10-1982 issued to the appellants by the Customs House, to which the Collector’s order has reference, clearly indicate that action under Sub-section (2) of Section 72 was also proposed. The learned Technical Member has also made a point that if a lower authority passes an order in terms of Sub-section (2) an appeal against that order would not lie to the Tribunal. On this point I consider that any “order” of a lower authority to enforce the demand notice already issued would not be an independent order or decision, but a compliance with the order dated 24-9-1982 of the Collector. If the appellants were to file an appeal against such a consequential “order” passed by a lower authority, it could with equal if not greater force be argued that the basic decision is not that of the lower authority but of the Collector. This could well result in the appellants being tossed between two sets of appellate authorities. In the circumstances, it would be proper to go by the plain indication given by the Department itself, in the shape of the preamble to the Collector’s order dated 24-9-1982 and to treat that as the basic order against which an appeal would lie, the appropriate appellate authority being the Tribunal.”
In this case we find that the impugned orders passed by the Assistant Collector were in pursuance of the following directions given by the Collector of Central Excise in his order-in-original No. 34-Collector/1990 dated 31-12-1990 :
“1. The Asstt. Collector should take into consideration the various submissions, calculations submitted by the party and my observation in this adjudication order and work out the correct demand amount after giving the party full opportunity of explaining the calculation and confirm the same and enforce the realisation of short levy under Section 11-A of Central Excises & Salt Act, 1944.
2. The penalty clause as alleged in the show cause notice under Rule 9(2) and Rule 173Q of Central Excise Rules is dropped.”
It is seen that in pursuance of these directions of the Collector the Assistant Collector did not issue any fresh show cause notice to the appellants and proceeded to adjudicate the matter on the basis of the Show Cause Notice which had already been adjudicated upon by the Collector. Under these circumstances we are of the view that on the ratio of the Tribunal’s decision in the case of K.S. Diesel Ltd. v. CCE, Bombay (supra) it should have been evident to the appellants that the appeal against the order passed by the Assistant Collector would lie to the Tribunal. Consequently, we are of the view that the appellants were not prevented by sufficient cause from filing the appeals before the Tribunal within the stipulated time limit of 3 months. We, therefore, do not find any reason to condone the delay. The applications for condonation of delay are, therefore, rejected, and as a sequel thereto both the appeals are dismissed as time-barred. In view of the above no separate orders are required to be passed on the stay applications. Hence the stay applications are also dismissed as infructuous.