1985 (7) TMI 261 - AT - Central Excise

Period of limitation computable from the date of receipt of the communication by the Collector

Summary

Issues:
1. Condonation of delay in filing appeals.
2. Interpretation of the term "communicated" in Section 35B(3) of the Central Excises and Salt Act.
3. Application of statutory provisions regarding service by post.
4. Rebuttable presumption of service.
5. Decision on the applications for stay of operation of the order-in-appeal.

Condonation of Delay:
The judgment pertains to appeals filed by the Collector (Appeals), Central Excise, New Delhi against an Order-in-Appeal dated 30-9-1984. The Collector claimed that the order was not received despite telegrams, necessitating the filing of supplementary appeals. The issue of condonation of delay arose concerning the main appeal and supplementary appeals. The main contention was whether the limitation period for filing appeals commenced upon dispatch or receipt of the order. The respondents argued that the main appeal was time-barred due to lack of a condonation application. However, the Collector's affidavit stated non-receipt of the order, which was not disputed by the respondents.

Interpretation of "Communicated":
The debate centered on Section 35B(3) of the Central Excises and Salt Act, which mandates filing appeals within three months from the date the order is "communicated" to the Collector. The respondents argued that "communicated" implied posting the order, while the Collector contended that receipt was necessary for the limitation period to begin. The Tribunal rejected the respondents' interpretation, emphasizing that communication was vital for the Collector to decide on further appeals after receiving and perusing the order.

Statutory Provisions and Rebuttable Presumption:
The judgment delved into statutory provisions like Section 27 of the General Clauses Act, Section 3(c) of the Indian Post Office Act, and Section 114 of the Evidence Act, which establish a rebuttable presumption of service by post. The Supreme Court and Allahabad High Court decisions reinforced the rebuttable nature of this presumption. The affidavit by the Collector's officer, unchallenged by the respondents, effectively rebutted the presumption of service, indicating non-receipt of the order by the Collector.

Decision on Stay Applications:
Regarding the stay applications, the respondents had already received refund amounts, rendering the stay requests moot. Consequently, the Tribunal dismissed the stay applications as infructuous. The judgment concluded that no delay condonation was necessary for the main appeal or the supplementary appeals due to the Collector's non-receipt of the order, and the stay applications were dismissed accordingly.