Collector Of Customs, Cochin vs Toshiba Anand Batteries Ltd.

1. We have heard Shri K.N. Bhat, the learned Additional Solicitor General of India on the appeals. Nobody appeared for the respondent even though duly served. These appeals are directed against the impugned order dated March 25, 1987 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the Tribunal). The respondent-company is a manufacturer of dry batteries and in connection with the said batteries a question arose as to whether the electrolytic manganese dioxide is to be classified under [Heading] 25.01/32(3) or 28.01/58(1). The Assistant Collector of Customs held that the said item was classifiable under Item 28.01/58(1). But on appeal, the Collector of Appeals took a contrary view and held that it was classifiable under Heading 25.01/32(3). The appeal filed by the Revenue against the said order of the Collector of Appeals has been dismissed by the Tribunal by the impugned order on the ground that it was barred by limitation by 20 days. The other appeals filed by the Revenue raising the same question in respect of the respondent had been earlier allowed by the Tribunal by order dated January 29, 1987 reported in 1987 (30) E.L.T. 972 (Tribunal). The learned Additional Solicitor General has pointed out that the said view of the Tribunal allowing the other appeals against the order of the Collector of Appeals and holding that the electrolytic Manganese dioxide is classifiable under [Heading] 28.01/58(1) has been upheld by this Court.

2. Having regard to the fact that the Tribunal had earlier allowed the appeals against the same order of the Collector of Appeals and the view of the Tribunal has been upheld by this Court, we are of the view that these are fit cases in which the Tribunal should have condoned the delay in the filing of the appeal and should have considered the matter on merits. Having regard to the fact that the Tribunal had in similar matters set aside the order of Collector of Appeals and the said view of the Tribunal has been affirmed by this Court in the case of Toshiba Anand Batteries v. Collector of Customs , we allow the appeals, set aside the order passed by the Tribunal and while condoning the delay in the filing of the appeal, allow the appeals, set aside the order passed by the Collector of Appeals and restore the order passed by the Asstt. Collector. No order as to costs.