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M/s Garlon Polyfab Industries Versus Commissioner Central Excise Kanpur

2015 (9) TMI 1081 - ALLAHABAD HIGH COURT

Application for rectification - Computation of period of limitation - Whether period of six months under Section 35C(2) of Central Excise Act, 1944, commence from date of knowledge of order by assessee, whereas assessee proposed to avail remedy therein or not - Held that:- Where an order is delivered and signed, and if same authority has to exercise power of rectification, modification, correction etc. suo-moto, limitation would commence from the date of signing and delivery of the said order an .....

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n the remedy has to be availed by a party, it is the date on which order is communicated to it and not the date on which order is signed or delivered, unless, it can be shown that date on which order was signed and delivered, party concerned was present in the court and had due knowledge thereof, and therefore, limitation should commence therefrom. Even in that case, it becomes the date of communication of order and not the date of mere passing of order. - Order of Tribunal is accordingly set as .....

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ge of order by assessee, whereas assessee proposed to avail remedy therein or not?" 3. In the present case short facts relevant and undisputed are that final order was passed on 24th February, 2004 and received by assessee on 27th February, 2004. Assessee claimed that said order was received by it on 19th July, 2004 and therefore rectification application filed by it on 26th October, 2004 was within period of limitation of six months' as provided in Section 35C(2) of Act, 1944. 4. Tribu .....

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passing of such order. Therefore, limitation starts from the date on which the order was communicated to the party and not the date on which it was pronounced or published. Unless communicated, the party affected by it would have no occasion to avail further remedy. It must have a reasonable opportunity of knowing of passing of the order and its contents. In other words limitation shall be counted not from the date when order is signed or delivered but from the date it was served on the affected .....

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or decision is the date on which the order or decision was passed or made : that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus paetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the po .....

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le opportunity of knowing of passing of the order and what it contains. 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. Otherwise the party affected by it will have no means of obeying the order or acting in conformity with it or of appealing against it or otherwise having it set. This is based upon, as observed by Rajamanner, CJ in .....

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such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo motu power over 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 th .....

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