1991 (9) TMI 71 - SC - Central Excise

Relevant date under Section 35E(3) is when adjudicatory order is signed, not when communicated; late direction invalid

COLLECTOR OF CENTRAL EXCISE Versus MM RUBBER CO.

SC held that the relevant date for computing the one-year period under Section 35E(3) is the date the adjudicatory order is signed/passed (when it becomes ... Excise duty on biaxially oriental polypropylene films - Interpretation of 'Date of the Decision or Order' - 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? - appellant contended that mere writing an order in file kept in the office is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant and that though the order of the adjudicating authority was made on 28-11-1984 a copy of the same was sent to the respondent only on 21-12-1984 and received by him on the very day and that therefore the limitation would start only at the earliest from 21-12-1984. He stated that the order was received by the Board also only subsequent to 21-12-1984. Held that:- It may be seen, 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 relevant date for purposes of determining whether the power has been exercised within the prescribed time. The power under Section 35E is a power of superintendence conferred on a superior authority to ensure that the subordinate officers exercise their powers under the Act correctly and properly. Where a time is limited for the purposes by the statute, such power, as under Section 33A(2) of the Indian Income-tax Act, 1992, 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. The period of one year fixed under sub-section (3) of Section 35E of the Act should be given its literal meaning and so construed the impugned direction of the Board was beyond the period of limitation prescribed therein and therefore invalid and ineffective. The Tribunal was right in holding that the application before them was out of time. This appeal is accordingly dismissed Issues Involved:1. Relevant date for the purpose of calculation of the period of one year under Section 35E(3) of the Central Excises and Salt Act, 1944.2. Interpretation of the term 'date of the decision or order' in the context of limitation periods.3. Distinction between the rights of aggrieved parties and the powers of authorities under statutory provisions.Issue-wise Detailed Analysis:1. Relevant Date for Calculation of the Period of One Year Under Section 35E(3):The core legal question is determining the relevant date for calculating the one-year period under Section 35E(3) of the Central Excises and Salt Act, 1944. The respondent argued that the relevant date should be the date when the adjudicating authority passed the order (28-11-1984) rather than when it was received by the respondent (21-12-1984). The Tribunal accepted this contention, leading to the appeal being considered out of time. The Supreme Court upheld this view, stating that the period of one year should be calculated from the date the order was passed, not from the date of its communication to the respondent.2. Interpretation of 'Date of the Decision or Order':The judgment delves into the interpretation of the phrase 'date of the decision or order' in various contexts. The court referred to several precedents, such as Annamalai Chett. v. Col. J.G. Cloete and Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer, which established that for an aggrieved party, the limitation period begins from the date of communication of the order. However, for authorities exercising suo motu powers, the limitation period starts from the date the order is made. The court emphasized that the date of the order is when it is signed and finalized, not when it is communicated.3. Distinction Between Rights of Aggrieved Parties and Powers of Authorities:The judgment distinguishes between the rights of aggrieved parties and the powers of authorities under statutory provisions. For aggrieved parties seeking remedies, the limitation period starts from the date of communication of the order. Conversely, for authorities exercising powers, such as the Board under Section 35E, the limitation period starts from the date the order is passed. This distinction is based on the principle that while the government is bound by the proceedings of its officers, the affected parties are not concluded by the decision until they are made aware of it. The court highlighted that the Board's power under Section 35E is a supervisory power, not akin to the right of appeal by an aggrieved party.Conclusion:The Supreme Court concluded that the period of one year under Section 35E(3) should be interpreted literally, starting from the date the order is passed. The Board's direction was beyond the prescribed limitation period and thus invalid. The appeal was dismissed, affirming the Tribunal's decision that the application was out of time.