1996 (12) TMI 153 - AT - Central Excise

Issues:
1. Appealability of the communication dated 28-7-1981 as an order.
2. Time-barred appeal before the Collector (Appeals) regarding the communication dated 28-7-1981.
3. Compliance with pre-deposit requirements in the second appeal.
4. Merger of the decision dated 28-7-1981 with the subsequent decision dated 22-12-1986.
5. Remand to the Collector (Appeals) for de novo decision on merits.

Issue 1: Appealability of the communication dated 28-7-1981 as an order:
The appellants contested the communication dated 28-7-1981 as an appealable order, arguing it was issued ex parte without a hearing or providing reasons. The Assistant Collector's subsequent actions implied acknowledgment of the lack of a hearing, as evidenced by granting a personal hearing upon request. Despite the absence of reasons in the initial communication, the Department considered it an appealable order. The Tribunal concurred, holding that even if deficient, the communication constituted an order, and failure to challenge it through appeal rendered subsequent actions ineffective.

Issue 2: Time-barred appeal before the Collector (Appeals) regarding the communication dated 28-7-1981:
The Collector (Appeals) dismissed the appeal against the communication dated 28-7-1981 as time-barred, as it was filed after the limitation period. The subsequent letter of 20-10-1981 was deemed a reference to the initial decision, not a separate order. The Tribunal upheld the dismissal, emphasizing the need for timely appeals against appealable orders to maintain legal validity.

Issue 3: Compliance with pre-deposit requirements in the second appeal:
In the second appeal, the appellants failed to comply with the pre-deposit specified by the Collector (Appeals), resulting in an ex parte dismissal. However, they later fulfilled the requirements, arguing for consideration of their compliance. The Tribunal accepted their subsequent compliance as sufficient, allowing for a remand to the Collector (Appeals) for a fresh decision on merits.

Issue 4: Merger of the decision dated 28-7-1981 with the subsequent decision dated 22-12-1986:
The decision dated 28-7-1981, pivotal in the first case, merged with the subsequent decision of 22-12-1986. The dismissal of the appeal against the latter was solely due to non-compliance with the stay order, not the underlying decision. The Tribunal recognized the merger and directed a remand for a comprehensive review by the Collector (Appeals) on all aspects, including the National Rayon case's applicability.

Issue 5: Remand to the Collector (Appeals) for de novo decision on merits:
The Tribunal set aside the impugned order in the second appeal, emphasizing the need for a fresh decision on the duty demand based on the price list decision. The appellants were granted the opportunity to present submissions on all relevant issues during the de novo proceedings. Additionally, the Tribunal directed the Collector (Appeals) to complete the process within three months due to the matter's age and the appellants' compliance in 1988.

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