TMI Blog2011 (8) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... that the knowledge of the party affected by such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him, and that in view of this, it is the date of communication which has to be treated as the relevant date for counting limitation period and since the order had been received on 27-1-2007 and the refund claim has been filed on 24-1-08 and the same was within time - Decided in favor of the assessee by way od remand - E/3022/2009(SM)(BR) - 509/2011-SM(BR)(PB) - Dated:- 2-8-2011 - Shri Rakesh Kumar, J. REPRESENTED BY : Shri Vikrant Kakria, Advocate, for the Appellant. Shri Anil Khanna, DR, for the Respondent. [Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals), the Commissioner (Appeals) vide order-in-appeal dated 20th August, 2009 upheld the Assistant Commissioner s observing that as per the records, the Commissioner (Appeals) s order had been handed over to the postal authority at GPO on 10-1-2007 and, hence, the same has to be taken as the date of dispatch and the words date of the order in Clause (ec) of the Explanation (B) to Section 11B mean the date of dispatch and not the date of communication of the order. Against this order of the Commissioner (Appeals), the present appeal has been filed. 2. Heard both the sides. 2.1 Shri Vikrant Kackria, Advocate, the learned Counsel for the appellant, pleaded that there is no dispute that the Commissioner (Appeals) s order, which had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation (B) to Section 11B provides that in a case where the duty becomes refundable by decree or direction of Appellate Authority, Appellate Tribunal, or any court, the date of such judgment of the order or direction would be the relevant date, that in view of clear provisions of the law, it is the date of appellate order or decree which would be treated as the relevant date from which the limitation period of one year would start, that he relies upon judgment of Hon ble Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.), wherein it has been held that the refund claim filed under Section 11B, except where the levy has been held to be unconstitutional, are to be treated as filed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, in this case is as to whether the words date of such judgment, decree order or direction used in Clause (ec) of Explanation (B) to Section 11B refer to the date of signing of the order or date of dispatch order or the date of actual communication of the order to the assessee. The Commissioner (Appeals) has held that it is the date of dispatch of the order, which would be the date of the order for the purpose of counting the limitation period. However, I find that Hon ble Supreme Court in the case of CCE v. M.M. Rubber Co. (supra) while considering the question of relevant date for the calculating the limitation period for the purpose of review under Section 35E(1) of the Central Excise Act, has in para 13 of the judgment, observed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y affected by which have reasonable opportunity of knowing of the passing of such an order and what it contains. Following the judgment of the Apex Court in the case of CCE v. M.M. Rubber Co. (supra), I hold that the limitation period would start from the date of the communication of the order and not the date of signing of the order or the date of dispatch and as such with regard to the order passed by Departmental Adjudicating Authority, or Commissioner (Appeals) the words - date of judgment have to be interpreted as the date of communication of the order. In view of this, the refund claim was within time and the impugned order rejecting the same as time-barred, is not sustainable. The impugned order is set aside and the matter is reman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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