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TMI Blog2025 (3) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act), held that "communicate" is a strong word. It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. A careful perusal of Section 37C (1) of the Central Excise Act would show that any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served, also by speed post with proof of delivery to the person for whom it is intended or his authorised agent, if any; if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof, to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; and if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion period.
The substantial question of law is answered in favour of the assessee and against the Revenue. The matter is remitted to the Commissioner (Appeals) for adjudicating the appeal on its own merit in accordance with law, expeditiously, as the appeal is old one and required to be decided expeditiously. X X X X Extracts X X X X X X X X Extracts X X X X ..... ions contained in Section 35 (1) of the Central Excise Act and the mode of communication is provided in Section 37C. He would further submit that by virtue of Section 37C (1) (a) of the Central Excise Act, the order can also be served by speed post with proof of delivery as inserted in Section 37C (1) (a) with effect from 10-5-2013 and in the instant case, though the respondents have filed documents pursuant to the order of this Court that the order passed by the Assistant Commissioner was dispatched by speed post vide consignment No.EC080953003IN, but the said document clearly states that the status of delivery as appearing in Indiapost.gov.in says, "Consignment Details Not Found". Once the order is received by email on 27-7-2018, appeal has been filed on 25-9-2018 within the period of limitation, therefore, the appeal ought not to have been dismissed on the ground of being barred by limitation by the Commissioner (Appeals) and it ought not to have been affirmed by the CESTAT and both the authorities have concurrently erred in misapplying the period of limitation, as Section 35 (1) of the Central Excise Act clearly provides that the order has to be communicated to the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals) [hereinafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days." 8. A careful perusal of Section 35 (1) of the Central Excise Act would show that the Central Excise Officer is required to communicate the order to the person aggrieved for the purpose of providing a remedy to the person adversely affected by the order and thereby limitation would commence from the date of communication. However, the word "communication" used in Section 35 (1) has not been defined in the Central Excise Act or the rules made thereunder, therefore, the same deserves to be interpreted by applying the rule of contextual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subordinate authorities' orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the government is bound by the proceedings of its officers but persons affected are not concluded by the decision." 12. Similarly, in the matter of Municipal Corporation of Delhi v. Qimat Rai Gupta and others (2007) 7 SCC 309, their Lordships of the Supreme Court have held that an order ordinarily would be presumed to have been made when it is signed. It is required to be communicated where communication thereof is a necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby. Their Lordships further held that the word "made" occurring in Section 126 (4) of the Delhi Municipal Corporation Act, 1957 cannot be construed to mean that unless the order is communicated, it should be deemed to have not been made. 13. In the matter of D. Saibaba v. Bar Council of India and another (2003) 6 SCC 186, the question before the Supreme Court was whether the limitation period for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service of decisions, orders, summons, etc., which states as under:- "37C. Service of decisions, orders, summons, etc.-(1) Any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served, - (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof, to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances that we are of the clear conclusion that a miscarriage of justice has taken place, in that the authorities/courts below have failed to notice the specific language of Section 37-C (1) (a) of the Act which requires that an order must be tendered on the person concerned or his authorised agent, in other words, on no other person, to ensure efficaciousness. We must immediately recall the decision in Taylor v. Taylor (1875) LR 1 Ch D 426 rendered venerable by virtue of its jural acceptance and applicable for over a century. It was approved by the Privy Council in Nazir Ahmad v. King Emperor 1936 SCC OnLine PC 41 : (1935-36) 63 IA 372 : (1936) 44 LW 583 and was subsequently applied in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1954 SC 322 : 1954 Cri LJ 910, State of U.P. v. Singhara Singh AIR 1964 SC 358 : (1964) 1 Cri LJ 263 (2), Babu Verghese v. Bar Council of Kerala (1999) 3 SCC 422 and more recently in Hussein Ghadially v. State of Gujarat (2014) 8 SCC 425 : (2014) 6 SCC (Cri) 26. As observed by this Court in Babu Verghese (supra): (SCC p. 432, para 31) "31. It is the basic principle of law long settled that if the manner of doing a particular act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by speed post with proof of delivery. Therefore, as per showing of the appellant, once he is communicated with the copy of adjudication order by e-mail on 27-7-2018, he would be justified in preferring appeal on 25-9-2018 before the Commissioner (Appeals), which is within the period of limitation of 60 days from the date of communication of the order, as the appellant was actually communicated with the order on 27-7-2018. As such, the Commissioner (Appeals) has committed grave legal error in holding the appeal to be barred by limitation and that it has been filed beyond the period of 60 days from the date of communication of the order. The CESTAT has also committed legal error in perpetuating the illegality committed by the Commissioner (Appeals) by dismissing the appeal holding it to be barred by limitation by affirming the order passed by the Commissioner (Appeals). 19. Consequently, the appeal is allowed and orders passed by the Commissioner (Appeals) affirmed by the CESTAT are hereby set aside. Conclusively, the substantial question of law is answered in favour of the assessee and against the Revenue. The matter is remitted to the Commissioner (Appeals) for adjudicating the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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