TMI Blog1991 (9) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... right in holding that the application before them was out of time. This appeal is accordingly dismissed - 6071 (NM) of 1990 - - - Dated:- 4-9-1991 - S. Ranganathan, V. Ramaswamy and N.D. Ojha, JJ. [Judgment per : V. Ramaswami, J.]. - The short question of law that arises for consideration in this appeal is as to what is the relevant date for the purpose of calculation of the period of one year provided under Section 35E(3) of the Central Excises and Salt Act, 1944 (hereinafter called the Act). Briefly stated the question arises in the following circumstances. 2. By order in Original No. 34 of 1984 dated 28-11-1984, the Collector of Central Excise, Madras as an adjudicating authority within the meaning of the Act, held as barred by limitation the demand from the respondent towards excise duty on biaxially oriental polypropylene films as set out in the show cause notice dated 25-10-1983 and dropped further proceedings against the respondent. A copy of this order was attested by the Superintendent of the office on 21-12-1984 and despatched to the respondent. It was received by the respondent on 21-12-1984. The Central Board of Excise and Customs (hereinafter called the Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch an appeal will have to be filed "within three months from the date of the communication to him of such decision or order". Clause 5 of Section 35A requires that on the disposal of the appeal, the Collector (Appeals) shall communicate the order passed by him to the Appellant, the adjudicating authority and the Collector of Central Excise. Section 35B provides for a right of appeal to any person aggrieved by, among other orders, (1) an order passed by the Collector (Appeals) under Section 35A and (2) a decision or order passed by the Collector of Central Excise as an adjudicating authority. Such an appeal will have to be filed "within three months from the date on which the order sought to be appealed against is communicated to the Collector of Central Excise or as the case may be the other party preferring the appeal. "The Appellate Tribunal also is required to send a copy of the order passed in the appeal to the Collector of Central Excise and the other party to the appeal. Section 35E(1) authorises the Board "of its own motion, call for and examine the record of any proceeding in which a Collector of Central Excise as an adjudicating authority has passed any decision or order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filing an appeal or revision under certain statutory provisions had come up for consideration in a number of cases. We may state that the ratio of the decisions uniformly is that in the case of a person aggrieved filing the appeal or revision, it shall mean the date of communication of the decision or order appealed against. However, we may note a few leading cases on this aspect. 10. Under Section 25 of the Madras Boundary Act, 1860 the starting point of limitation for appeal by way of suit allowed by that section was the passing of the Survey Officer's decision and in two of the earliest cases, namely, Annamalai Chett. v. Col. J.G. Cloete (1883 ILR 6 Mad. 189) and Seshamma v. Sankara (1889 ILR 12 Mad. 1), it was held that the decision was passed when it was communicated to the parties. In The Secretary of State for India in Council v. Gopisetti Narayanaswami Naidu Guru (ILR 34 Madras 151) construing a similar provision in the Survey and Boundary Act, 1897 the same High Court held that a decision cannot properly be said to be passed until it is in some way pronounced or published under such circumstances the parties affected by it have a reasonable opportunity of knowing what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the income, profit and gains were first assessable," it was held that the time limit of four years for exercise of the power should be calculated with reference to the date on which the assessment or reassessment was made and not the date on which such assessment or reassessment order made under Section 34(2) was served on the assessee. 12. It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpreting these provisions the Court observed : "In a case falling under sub-section (1) the Commissioner acts of his own motion. There is no question of the aggrieved party invoking his jurisdiction. There can therefore be no occasion to apply the rule enunciated in Secretary of State for India in Council v. Gopisetti Narayanaswami Naidu (1910 ILR 34 Mad. 151). It may be said that the Commissioner's power to call for the record ceases with the lapse of one year from the date of the order by the subordinate authority. But in a case falling under sub-section (2) the party aggrieved has got to take the step of applying for revision and he is allowed one year from the date of the order. The provision is, therefore, certainly in the nature of a time-limit for the application for revision." 15. The decision in Viswanathan Chettiar's case (supra) related to the reassessment power under Section 34(2) of the Income Tax Act, 1922 which read as follows : "No order of assessment under Section 23 or of assessment or reassessment under sub-section (1) of this section shall be made after the expiry, in any case to which clause (c) of sub-section (1) of Section 28 applies, of eight years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 33A(2) of the Indian Income-tax Act, 1992 referred to in Muthia Chettiar (supra), should be exercised within the specified period from the date of the order sought to be reconsidered. To hold to the contrary would be inequitable and will also introduce uncertainties into the administration of the Act for the following reason. There appears to be no provision in the Act requiring the endorsement, by a Collector, of all orders passed by him to the Board. If there is such a practice in fact or requirement in law, the period of one year from the date of the order is more than adequate to ensure action in appropriate cases particularly in comparison with the much shorter period an assessee has within which to exercise his right of appeal. If, on the other hand, there is no such requirement or practice and the period within which the Board can interfere is left to depend on the off-chance of the Board coming to know of the existence of a particular order at some point of time, however distant, only administrative chaos can result. We are, therefore, of the opinion that the period of one year fixed under sub-section (3) of Section 35E of the Act should be given its literal mea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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