9911796707
TMI Blog1988 (8) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... ously charged in excess of the actual value and that excess duty had, therefore, been paid. This claim was dismissed by the Asstt. Collector by his order dated 28-1-1982 as barred by limitation under Section 11B of Central Excises and Salt Act. In appeal, however, the Collector of Central Excise (Appeals) by his order dated 6-7-1983, did not agree with Asstt. Collector s finding but agreed with the respondents contention that the claim was not barred by time since it had been filed within 6 months from the date of assessment of the relevant RT 12 Return, by the proper authority on 11-1-1981. On the merits of the dispute relating to the assessable value of the goods, the Collector (Appeals) found against the respondents. In the present appeal, the Collector, Bhubaneshwar, has challenged the finding of the Collector (Appeals} on the issue of limitation. The respondents have not, however, chosen to appeal against the order of the Collector (Appeals). 3. The respondents did not appear in person at the time of the hearing but had furnished written submissions. We accordingly heard Shri. G.V. Naik, Jt. CDR, for the Collector and perused the records. 4. At the commencement of the hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l had been preferred to the Tribunal was merely a request from the Customs Department for payment of duty on a voluntary basis since a legal demand in terms of the law was barred by limitation and could not have been issued. The Tribunal took the view that the appellants could not be said to be aggrieved by the said order and, therefore, could not file an appeal against it under the provisions of the Customs Act. 8. The case before us, however, is not on all fours with the case of Hindustan Aeronautics Ltd. The respondents had filed a claim for refund of duty which came to be dismissed as barred by limitation by the original authority and this part of the order was reversed by the First Appellate Authority though the respondents did not, in the final analysis, succeed in their claim for refund. The decision in the Hindustan Aeronautics Ltd. case, therefore, has no application to the present case. 9. As earlier noted, if the finding of the Collector (Appeals) on the issue of limitation which is couched in general terms is not challenged before this Tribunal for an authoritative pronouncement on the issue, the lower authorities would have felt bound by the finding which was on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limited that the additional sum of duty, if any, paid as a result of the direction in the assessment memorandum. In the present case, there is no allegation that the proper officer, on final assessment of the RT 12 Return, directed the assessee to pay any additional amount of duty. Indeed, the case of the assessee is that even when it had paid duty on self assessment, duty had been paid in excess. In these circumstances, the relevant date would be the date of payment of duty only. The claim having been filed after the expiry of 6 months from the date of payment of duly was, therefore, barred by limitation under Section 11B of the Act. It was correctly dismissed as such by the Asstt. Collector and the finding of the Collector (Appeals) on the aspect of limitation is not correct and Is set aside. The appeal is allowed in these terms. 12. [Per: V.T. Raghavachari, Member (J)]. - I have carefully perused the order prepared by the Senior Vice-President. Since I am unable to persuade myself into agreeing with his conclusion as to the maintainability of the appeal, I am recording this separate order. 13. The Collector (Appeals) while disagreeing with the conclusion of the Assistant C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Salt Act. Sub-section (1) thereof provides that any person aggrieved by an order passed by the Collector (Appeals) under Section 35A may appeal to the Appellate Tribunal against such order. Sub-section (2) provides for appeals by the Col-lector of Central Excise and states that he may prefer an appeal if he is of opinion that the order of the Collector (Appeals) is not legal or proper. These provisions, therefore, contemplate an appeal being filed against an order. The question would be whether the said right of appeal is against the order in its ultimate effect or parts of the order (by way of findings leading to the final result) on the ground that each of such findings would also be an order as mentioned in the Section. As earlier mentioned no case law was cited arising on this issue under Section 35B. The decision in 1983 ELT 2012 (referred to in the order of the Senior Vice-President) did not deal with this issue. 16. So far as the proceedings in a civil court are concerned there are various decisions which clearly lay down that no appeal lies at the instance of a party with reference to a finding against him when the result of the proceedings (formalised in the decree) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire order including every finding though the ultimate decision may not be in conformity with one or more of the findings. We may in this connection refer to the decision of the Rajasthan High Court in the case of Tara Singh v. Smt. Shakuntala (AIR 1974 Rajasthan 21). The proceedings therein were under the Hindu Marriage Act. The wife had instituted a proceeding for restitution of conjugal rights. The husband resisted the petition firstly on the ground that in view of a divorce the petitioner was no longer his wife and secondly on the ground that desertion was on the part of the petitioner. The Trial Judge rejected the plea of divorce raised by the husband. But he further held that the wife was the deserting party. Consequently he dismissed the petition. The husband preferred an appeal against the order (though of dismissal and hence in his favour) of the ground that the finding on the question of divorce was against him. Section 28 of the Hindu Marriage Act provided for the filing of an appeal against every decree or order that may be passed under the Act. When the maintainability of the appeal was questioned a contention was raised that in view of the wording of Section 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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