ORDER
P.C. Jain, Member
1. Brief facts of the case are as follows:
1.1 Metals and Ors. Co. (a Division of Union Carbide India Ltd.) were availing of the benefit of notification No. 276/67 dated 21.12.67 in respect of Toluene which was obtained by them under Chapter X Procedure of the Central Excise Rules, 1944 for utilisation in the manufacture of chemical formulation known as C.P. 3 coating. The provisions of this notification were being availed of by the appellants right from 1967. Later on the Collector by the order-in-original
No. 14(26A)80/Collr.-69/81 dated 1.5.81 has denied the benefit in respect of Toluene of the said notification on the following ground:
Having considered all the facts and circumstances of the case, the report of the Chemical Examiner, the mode of manufacture of product in dispute i.e. C.P. 3 coating, its application as a coating material by roller coating technique and the Chemical composition I hold that the product bears similarity to varnishes and is classifiable as ‘allied materials’ occurring in the Notification No. 35/73 dated 1.3.73 and accordingly, chargeable to duty under the said Notification. The said Company shall, therefore, pay the duty on tolune under Notification No. 35/73 dated 1.3.73 as amended.
1.2 Instead of filing appeal the appellants herein filed an application for review dated 30th December, 1981 under Section 35-A of the Central Excises and Salt Act, 1944, as it then stood for reviewing the Collector’s order before the Central Board of Excise and Customs. The said Board vide its order dated 10th October, 1985, which is now impugned before us, has held in paras 3 and 4 as follows:
3. I have perused the application of the party and records connected therewith. I observed that the very grounds which are urged in the application for revision could have been urged in the appeal which was required to be filed within 3 months from the date of receipt of the order by the party Under Section 35 of the Act. Sections 35 and 35A of the Act are not parallel sections. The party evidently having failed to act in time to present their appeal within the limitation period allowed Under Section 35 of the Act, are trying to get through Section 35A of the Act, a remedy which is available Under Section 35 of the Act. It is, however, a misconceived move as Sections 35 and 35A are two distinct provisions with distinct purposes and areas of application.
4. Under Section 35A of the Act the Board can exercise the powers of revision for the purpose of satisfying itself as to the correctness, legality or propriety of such orders as passed by the subordinate authority. Even after giving my fullest consideration to this case, I don’t find any error, illegality or impropriety in the order of the Collector of Central Excise, Calcutta against which the present application for revision has been filed. I, therefore, see no reasons to interfere Under Section 35 of the Act with the order of the Collector of Central Excise, Calcutta and accordingly dismiss the revision application.
2. Learned advocate for the appellants has urged that the learned Member of the Board has erred in not exercising his powers under Section 35-A of the said Act, as it then stood, on the ground that the appellants could file and appeal if they were aggrieved against the Collector’s order. It has also been urged that the learned Member has not given any reasons for not considering the application for review from the appellants herein. He has merely given his conclusion that he does not find any error, illegality or impropriety in the order-in-original of the Collector of Central Excise, Calcutta without
discussing any of the pleas made before the learned Member in the application for review/revision. The learned advocate has relied upon Tribunal’s decision in Misc. Order No. 53/86-B1 dated 30.6.86 in appellants’ own case namely Union Carbide (India) Ltd. Calcutta v. CCE, Calcutta.
2.1 On merits, the learned advocate has urged that the issue involved is the same as in the appeals by the department in the case of Collector of Central Excise, Calcutta v. Metals and Ors. Co. (Appeal Nos. E/3092/83-C with suppl. A.No. E/3648/90-C and E/3649/90-C) which has been argued separately on the same day.
3. He has, therefore, nothing more to say so far as the main question whether C.P. 3 coating is a chemical formulation or not or whether it is entitled to the benefit of notification No. 276/67 than what he has already stated in respect of these appeals.
4. Learned DR reiterates the views of the lower authorities.
5. We have carefully considered the pleas advanced on both sides. We agree with the appellants’ learned advocate that the Board was not correct in rejecting the review application under Section 35-A (as it then stood) of the said Act merely on the ground that the appellants did not follow the appellate remedy available to them and that they are merely taking the advantage of the provisions of Section 35-A after they had lost the limitation for filing a regular appeal under Section 35 of the said Act. The Tribunal’s decision in the Misc. Order No. 53/86-B1 dated 30.6.86 has clearly held as follows:
the picture that emerges is that the Collector in this case was not correct in refusing to consider the revision petition only on the ground that it had been preferred without exhausting the appellate remedy after the time limit for such a remedy had lapsed.
The impugned order of the Board does not give any other reason for not considering the review application of the appellants. In view of the Tribunal’s decision, mentioned supra, which in turn is based on Tribunal’s other decisions namely.
(1) Order No. 83/85-D dated 28.2.85 in the case of Rajasthan Worsted Spg. Mills v. CCE, Jaipur.
(2) Order No. 49/85-B1 dated 6.9.85 in the case of Hindustan Conductors v. CCE, Allahabad.
(3) Order No. 175/86-B1 dated 21.3.86 in the case of Steel Authority of India Ltd.
(4) Order No. 37/86-B1 dated 28.4.86 in the case of Shriram Refrigeration Inds. Ltd. v. CCE, Hyderabad.
after considering (1) 48 STC 41 – Ramesh and Co. v. Commissioner Land Revenue and (2) AIR 1976 2136-Bombay Amonia Pvt. Ltd. the impugned order of the Board is liable to be set aside and we order accordingly.
5.1 Further, since the Board does not have any longer any authority to decide the matter in review, it would not be appropriate to remand the matter to the Board at this stage. More so, when we have considered the basic issue involved in this appeal in the other appeals, mentioned supra, in the case of C.C.E. Calcutta v. Metals and Ors. Co. vide Order Nos. 100 to 102/91-C dated 30.1.91 reported in [1991] 33 ECC 52 (SB). We set aside the order-in-original passed by the Collector of Central Excise, Calcutta since we have already held that C.P. 3 coating is a chemical formulation and the appellants are entitled to the benefit of notification No. 276/67 vide order Nos. 100 to 102/91-C dated 30.1.91, Mentioned supra.