THE COLLECTOR OF CENTRAL EXCISE, MADRAS v. M-S. M.M. RUBBER & CO. TAMIL NADU

Citation: [1991] 3 S.C.R. 862

Court: Supreme Court of India

Bench: S. RANGANATHAN, N.D. OJHA, V. RAMASWAMI

Case summary

The short question of law that arises for consideration in this appeal is as to what is the relevant date for the purpose of calculation of the period of one year provided under section 35E(3) of The Central Excises & Salt Act, 1944 (hereinafter called the Act)....

Judgment text

The Judgment of the Court was delivered by V. RAMASWAMI, J. The short question of law that arises for consideration in this appeal is as to what is the relevant date for the purpose of calculation of the period of one year provided under section 35E(3) of The Central Excises & Salt Act, 1944 (hereinafter called the Act). Briefly stated the question arises in the following circumstances. By order in Original No. 34 of 1984 dated 28. 11. 1984, the Collector of. Central Excise, Madras as an adjudicating authority within the meaning of the Act, held as barred by limitation the demand from the respondent towards excise duty on biaxially oriental polypropylene films as set out in the show cause notice dated 25. 10. 1983 and dropped further proceedings against the respondent. A copy of this order was attested by the Superintendent of the office on 21. 12. 1984 and despatched to the respondent. It was received by the respondent on 21. 12. 1984.

The Central Board of Excise and Customs (hereinafter called the Board), after consideration of the order, on 11. 12. 1985 directed the Collector of Central Excise, Madras under the provisions of Section 35E(1) to apply to the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi, for correct determination of the points arising out of the aforesaid order and accordingly the Collector filed the application before the Tribunal as provided under Section 35E(4) of the Act. Before the Tribunal the respondent urged that the relevant date of the Collector's (adjudicating authority) order for the purposes of Section 35E(3) should be taken as 28. 11. 1984 and not 21. 12. 1984 when it was received by the respondent and on that basis the order of the Board under Section 35E(l) of the Act should be held as beyond the period of one year from the date of the decision or order of the adjudicating authority and therefore the application before the Tribunal was incompetent.

The Tribunal accepted this contention and .. . held that the application was not maintainable. In this appeal filed under Section 35L of the Act the learned counsel for the appellant contended that mere writing an order in file kept in the office is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant and that though the order of the adjudicating authority was made on 28. 11. 1984 a copy of the same was sent to the respondent only on 21. 12. 1984 and ~ received by him on the very day and that therefore the limitation ~-would start only at the earliest from 21. 12. 1984. He stated that the ~'. ' order was received by the Board a! :;o only subsequent to 21. 12. 1984. i· His further submission was that enabling the giving of the direction under Section 35E(l) and the application under Section 35E(4) in pursuance of that direction shall be treated as if a right of appeal given. to the department.

On this basis his argument was that the departmental authorities and the private parties are to be treated equally as aggrieved persons for the purposes of calculating the time for making the direction under Section 35E(3) of the Act. ~ Before we discuss the arguments of \he learned counsel, it is necessary to set out some relevant provisions in the Act. Section 35 of the Act, provides for an appeal to a person aggrieved by any decision or order passed under the Act by a Central Excise Officer lower than a Collector of Central Excise and that such an appeal will have to be filed "within three months from the date of the communication to him of such decision or order". Clause 5 of Section 35A requires that on t the disposal of the appeal, the Collector (Appeals) shall communicate the order passed by him to the Appellant, the adjucicating authority and the Collector of Central Excise.

Section 35B provides for a right of appeal to any person aggrieved by, among other orders, (1) an order passed by the Collector (Appeals) under Section 35A and. (2) a decision or order passed by the Collector of Central Excise as an adjudicating authority. Such an appeal will have to be filed "within three months from the date on which the order sought to be appealed against ; is communicated to the Collector of Central Excise or as the case may be the other party preferring the appeal. " The Appellate Tribunal also is required to send a copy of the order passed in the appeal to the Collector of Central Excise and the other party to the appeal. Section · 35E(l) authorises the Board "of its own motion, call for and examine the record of any proceeding in which a Collector of Central Excise as COLLECTOR v. M. M. RUBBER [RAMASWAIV)I. J.

J 867 an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Collector to .... apply to the Appellate Tribuna> . r as the case may be the Customs and Excise Revenues Appellate Tribunal established under Section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 for the determination of such points arising out of the decision or order as may be specified by the Board in its order. " As sub-section (2) is also relevant for consideration that may also be set here and that reads: "2.

The Collector of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying him,elf as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector or Central Excise in his order. It may be seen that the direction to file an appeal under . these two sub-sections by the Board and the Collector, as the case may be, is to the very adjudicating authority who would otherwise be bound by his own order and not expected to be aggrieved by the same. When an appeal is filed on such direction, the appellant will be the adjudicating authority himself and not the authority who gave the direction.

Sub-Section (3) of Section 35E 0f the Act which deals with the limitation for exercise of the powers under-sub-sections (1) and (2) of the Act and which is the relevant provision for consideration in this appeal reads as follows: "No order shall be made under sub-section (1) or subsection (2) after the expiry of one year from the date of the decision or order of. the adjudicating authority. ,; • At this st~ge itself we may state that sub-section (4) of the Act provides that the adjudicating authority shall file the application before the Tribunal in pursuance of the order made under sub-section (1) or sub-section (2) "within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority. " The words "from the date of decision or order" used with reference to the limitation for filing an appeal or revision under certain statutory provisions had come up for consideration in a number of cases.

We may state that the ratio of the decisions uniformly is that in the case of a person, aggrieved filing the appeal or revision, it shall mean the date of communication of the decision or order appealed against. However, we may note a few leading cases on this aspect. Under section 25 of the Madras Boundary Act, 1860 the starting point of limitation for appeal by way of suit allowed by that section was the passing of the Survey Officer's decision and in two of the earliest cases, namely, Annamalai Chetti v. Col. J. G. Cloete, [1883) ILR 6 Mad. 189 and Seshamma v. Sankara, [1889] ILR 12 Mad. 1, it was held ~· that the decision was passed when it was communicated to the parties. In The Secretary of State for India in Council v.

Gopisetti Narayanaswami Naidu Guru, ILR 34 Madras 151, construing a similar provision in the Survey and Boundary Act, 1897 the same High Court held that a decision cannot properly be said to be passed until it is in some way pronounced or publishsed under such circumstances the parties affected by it have a reasonable opporunity of knowing what it contains. "Till then though it may be written out, signed and dated, it is nothing but a decision which the officer intends to pass. It is not passed 1 so long it is open to him to tear off what he has written and write something else. " In Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer & Anr.

, [1962] 1 SCR 676 construing the proviso to Section 18 of the Land Acquisition Act which prescribed for applications seeking reference to the Court, a time limit of six weeks of the receipt of the notice from the Collector under Section 12(2) or within six months from the date of the Collector's award whichever first exl'ires, this Court held that the six months period will have tc be calculated from the date of communication of the award. In Asstt. Transport Commissioner (Administration) U. P. & Ors. v. Sri Nand Singh, [1981] 1 SCR 131 construing the provision of Section 15 of the U. P. Motor Vehicle Taxation Act, it was held that for an aggrieved · party the limitation will run from the date when the order Was communicated to him. The ratio of these judgments were applied in interpreting section 33A(2) of the Indian Income Tax Act, 1922 in Muthia Chettiar v. CIT, ILR 1951 Mad. 815 with reference to a right of revision provided to an aggrieved assessee.

Section 33A(1) of the Act on the other hand authorised the Commissioner to suo moto call for the records of any proceedings under the Act in which an order has been passed by any