TMI Blog1980 (2) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Collector, Central Excise, Calcutta, II-Division upheld the re-classification of paper made by the Superintendent, Central Assistant Unit No. II(I) and ordered payment of differential duty. The petitioner-company received the said order on 9th October, 1971. The prescribed period of limitation of an appeal under Sec. 35 of the Central Excises and Salt Act, 1944 was three months. On 8th January, 1912, the petitioner sent by registered post with A/D an appeal under S. 35 of the Act addressed to the Appellate Collector Central Excise, Calcutta, Custom House, Calcutta-l. On 11th January, 1972, the said registered cover containing the appeal of the petitioner was received in the office of the appellate authority. The Appellate Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts appeal petitions under registered post with A/D before the expiry of the prescribed period of limitation. But the postal authorities had delivered the said registered covers to the Appellate Collector of Central Excise, Calcutta after expiry of the period of limitation for the said two appeals. The petitioner has submitted that the respondents should have held that the two appeals were presented by the petitioner-company on the dates the registered covers containing the appeal petitions were made over to the postal authorities for transmission and the respondents committed jurisdictional error by treating the dates of delivery of the postal covers as the dates of presentation of the two appeals. 5. The S. 35 of the Central Excises and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the date of posting of the cover containing the memo/petition of appeal shall be deemed as the date of filing of or presenting the said appeal. 6. I may now proceed to mention some of the reported decisions in the above point. In Commissioner of Income Tax, Bombay v. M/s. Ogale Glass Works Ltd. - AIR 1954 SC 429, one of the terms of the agreement was that the payments were to be made on submission of the bills by cheques on a branch of the Reserve Bank or the Imperial Bank of India. On the facts and circumstances of the case, the Supreme Court in M/s. Ogale Glass Works Ltd's case (Supra), held that although the assessee was a non-resident company incorporated and carrying on business outside British India, the incomes, profits or gains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere patently wrong in holding that the appeal before the Collector was time barred". Thus, the learned Judges held that by reason of the conduct of the authorities the post office became their agent. In the instant case, the petitioners have neither placed nor proved that the authorities have invited the appeals by post or that by their representation the postal authorities were constituted as their agents. 9. Mr. Mitra had also relied upon the Division Bench decision of the Orissa High Court in Sri Popsing Rice Mill v. Commissioner of Income Tax -1 ITR 420, which held that when a reference application is transmitted by registered post within the period of limitation even if there is delay in transmission the application shall be consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax U.P. - 40 ITR 481, which also similarly held that mere delivery of the application to the postal authorities within the period of limitation did not amount to compliance with the provisions of S. 66(1) because no application could be made to the Tribunal until it is presented to the Tribunal. The Division Bench of the Allahabad High Court had also relied upon the provisions of Rule 7(2) of the Appellate Tribunal Rules. 11. Mr. Mitra, appearing on behalf of the petitioners, has pointed out that the aforesaid decisions relating to presentation of reference petitions were rendered with reference to clear provisions of Rule 7(2) of the Appellate Tribunal `Rules which expressly laid down that the date of the delivery by post shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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