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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 ..... answer the aforesaid substantial question of law, following facts are required to be noticed:- 3. The Assistant Commissioner of Central Excise issued show cause notice to the appellant on 15-5-2017 and ultimately, after hearing the appellant, the Assistant Commissioner passed adjudication order on 5-12-2017. As per the provisions contained in Section 35 (1) of the Central Excise Act, the order was required to be communicated by the Assistant Commissioner to the person aggrieved / appellant herein. According to the respondents herein, the said order was communicated to the appellant in original vide speed post / consignment No.EC080953003IN dispatched from their office on 15-12-2017. However, it is the case of the appellant that the order of the Assistant Commissioner was actually received by him on 27-7-2018 through e-mail and consequently, he preferred appeal before the Commissioner (Central Excise) on 25-9-2018 reciting that the order has been received by him on 27-7-2018. However, by order dated 14-12-2018, the learned Commissioner (Central Excise) dismissed the appeal holding that the appeal is barred by limitation as it ought to have been preferred within 60 days from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be communicated to the person aggrieved enabling him to avail the remedy available under the law of preferring appeal before the appellate authority i.e. the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order. Section 37C of the Central Excise Act clearly provides that any decision or order passed under this Act or the rules made thereunder shall be served by speed post with proof of delivery, however, in the present case, though the order was sent to the appellant through speed post vide consignment No.EC080953003IN, but there is no proof of delivery, even there is a direction by this Court to produce the document showing communication of order which has not been produced which goes to show that the appellant was never communicated in compliance of Section 35 (1) read with Section 37C (1) (a) of the Central Excise Act enabling him to prefer appeal. Therefore, the order passed by the Commissioner (Appeals) as well as by the CESTAT holding the appeal to be barred by limitation deserves to be quashed by answering the substantial question of law in favour of the assessee and against the Revenue and decide the appeal afresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y applying the rule of contextual interpretation and keeping in view the language of the relevant provisions (see Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission and others (2010) 5 SCC 23). 9. The word "communication", according to Black's Law Dictionary (Sixth Edition), means, information given; the sharing of knowledge by one with another; conference; consultation or bargaining preparatory to making a contract. A "communication" is ordinarily considered to be a deliberate interchange of thoughts or opinions between two or more persons, as distinguished from "res gestae" expressions which are spontaneously or instinctively provoked, or made while under such shock or excitement as to preclude the possibility of design. The ordinary meaning of communicate is to impart, confer or transmit information (see Union of India v. S.P. Singh (2008) 5 SCC 438). 10. In the matter of Kubic Darusz v. Union of India and others (1990) 1 SCC 568, their Lordships of the Supreme Court while dealing with communication of grounds of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act), held that "commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the limitation period for filing a review under Section 48AA of the Advocates Act, 1961, should commence from the date of the order or its communication. Their Lordships of the Supreme Court reasoned that the limitation period should start from the date of communication or knowledge of the order, aligning with principles of fairness and practicality. Their Lordships allowed the appeals, set aside the Bar Council's orders, and restored the appellant's (therein) enrollment as an advocate. Their Lordships further held in paragraph 14 as under:- "14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed." 14. Coming to the facts of the case in light of the provisions contained in Section 35 (1) of the Central Excise Act and the decisions rendered by their Lordships of the Supreme Court in that regard, it is quite vivid that Section 35 (1) m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision or order or issued such summons or notice. (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or courier referred to in sub-section (1) or a copy thereof is affixed in the manner provided in sub-section (1)." 16. 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 thereof o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all." 18. Reverting finally to the facts of the case in light of the provisions contained in Section 37C of the Central Excise Act, which provides the manner of serving the copy of decision or order, it is quite vivid that the purpose of communicating the order to the person aggrieved, in this case, the appellant herein / assessee, is for the purpose of enabling him to prefer an appeal against the adjudicating order before the Commissioner (Appeals), as only 60 days time has been provided from the date of communication to prefer appeal and the Commissioner (Appeals) is empowered only to condone the delay of further 30 days and thereby, after 90 days from the date of communication, no further jurisdiction has been conferred to the Commissioner (Appeals) to condone the delay. There is complete exclusion of Section 5 of the Limitation Act as held by the Supreme Court in Singh Enterprises (supra). Therefore, the Assistant Commissioner of Central Excise was obliged to strictly comply the provisions contained in Section 35 (1) read with Section 37C (1) (a) of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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