TMI Blog2004 (6) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... aman Acrylic Ltd. - 2002 (148) E.L.T. 360 (Tri-Mumbai) the West Zonal Bench of the Tribunal has taken the view that it is not the date on which order is passed under sub-section (1) of Section 35E but the date on which order was issued is relevant for the purpose of computing the period of limitation of one year under sub-section (3) of Section 35E. On the other hand, in GTC Industries v. CCE - 2002 (144) E.L.T. 632 (T) Northern Bench took the view that it is the date on which the review order was passed is the relevant date. It is submitted before us that the decision in GTC Industries was taken in appeal by the assessees before the Supreme Court. After condoning the delay special leave petitions were dismissed in Kanpur Cigarette Ltd. v. Commissioner - 2003 (157) E.L.T. A41 (S.C.) and Tamil Nadu Tobacco Co. Ltd. v. Commissioner - 2003 (156) E.L.T. A214 (S.C.). 2.In the present case, the order-in-original was passed by the Commissioner of Central Excise, Chennai-II on 31-12-1997. Central Board of Excise Customs reviewed the Commissioner's order on 29-12-1998. The order of review was issued on or after 11-3-1999 and the same was received by the Commissioner on 26-4-1999. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 35B shall, so far as may be, apply to such application. In Commissioner of Customs (Import), Mumbai v. Vardhman Acrylic Ltd. the Bench followed the ratio of the earlier decision in Commissioner v. Fujitus India Telecom Ltd. In Fujitus India Telecom the Tribunal after referring to provisions contained under sub-section (2) and sub-section (3) of Section 129D of the Customs Act held as follows :- "6. In terms of the aforesaid provisions, the exercise of powers by the Commissioner is reflected in the direction made to the particular authority to make an application. Now the word 'direct' is the significant. It is not sufficient for the Reviewing Commissioner to make an order in file and say that was the date on which the direction was made. For fulfilling the condition, a communication must be made to the officer who is to make an application to the Commissioner (Appeals) in other word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order and directing the Commissioner to file an appeal takes in not only mere passing of the order or issuing a direction but communication of the same also. If that be so, the further contention raised is that the communication of the order shall be within one year from the date of the impugned order passed by the adjudicating authority. We find it difficult to accept this contention since under sub-section (4) there is a specific provision regarding filing of an appeal within three months from the date of 'communication of the order'. If the provision under sub-section (1) itself takes in the concept of communication also then there is no need to make a further reference to the date of communication in sub-section (4). Sub-section (4) would have been worded as 'from the date of direction.' The decision relied on by the learned9. Counsel, according to us, is of no help to interpret the provisions with which we are concerned. The question came up for consideration before the Delhi High Court was whether the application for refund filed under Section 27(1)(ii) of the Customs Act, 1962 is barred by limitation provided under sub-clause (b). An application for refund has to be made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued the impugned direction of the Board was beyond the period of limitation prescribed therein and therefore invalid and ineffective. While coming to the above conclusion the Apex Court made reference to two decisions of Madras High Court under the Income Tax Act. In Muthia Chettiar v. CIT - ILR 1951 Mad. 815, Section 33A(1) of the Act came up for consideration. The above Section authorised the Commissioner to suo motu call for the records of any proceedings under the Act in which an order has been passed by any authority subordinate to him and pass such order thereon as he thinks fit. The proviso, however, stated that the Commissioner shall not revise any order under that sub-section "if the order (sought to be revised) has been made more than one year previously". Construing this provision the High Court of Madras held that the power to call for the records and pass the order will cease with the lapse of one year from the date of the order by the subordinate authority and the ratio of date of the knowledge of the order applicable to aggrieved party is not applicable for the purpose of exercising suo motu power. Similarly, in Vishwanathan Chettiar v. Commissioner of Income Tax, Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n allegation that the order was in fact made after the expiry of the period of limitation but was anti-dated. There is a delay of more than ten months in serving the order on the assessee. Since there was no explanation coming from the Deputy Commissioner why it was so delayed, the Apex Court was inclined to presume that the order was not made on the date it purports to have been made. In Ushodaya Enterprises Limited also similar dispute was raised. Since there was no explanation for the inordinate delay in serving the revisional order, Court took the view that the order was not passed on the date on which it was purportedly passed. In the present case before us at no stage the assessee had a contention that the review order was not as a matter of fact passed on 29-12-1998 or that the order was pre-dated. It is their definite contention that it is not the date on which the order was passed that is relevant but it is the date of its receipt by the Commissioner that is relevant for the purpose of computing the period of limitation. 7.In the light of the above discussion, we are inclined to agree with the view taken in GTC Industries in preference to the view taken by the West Zonal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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