https://www.taxtmi.com/css/info/rss_sitemap/rss_feed.css?v=1746094055 https://www.taxtmi.com Business/Tax/Law/GST/India/Taxation/Policies/Legal/Corporate Tax/Personal Tax/Vat Law/Legal Information/Tax Information/Legal Services/Tax Services Tax Management India. Com / MS Knowledge Processing Pvt. Ltd. All rights reserved. One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=767577 https://www.taxtmi.com/caselaws?id=767577 Dismissal of appeal on the ground of being time barred - HELD THAT:- A careful perusal of Section 35 (1) of the Central Excise Act would show that the Central Excise Officer is required to communicate the order to the person aggrieved for the purpose of providing a remedy to the person adversely affected by the order and thereby limitation would commence from the date of communication. However, the word communication used in Section 35 (1) has not been defined in the Central Excise Act or the rules made thereunder, therefore, the same deserves to be interpreted by applying the rule of contextual interpretation and keeping in view the language of the relevant provisions. In the matter of Kubic Darusz v. Union of India and others [ 1990 (1) TMI 78 - SUPREME COURT ], 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 communicate is a strong word. It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. 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 on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. Sub-section (2) of Section 37C provides that 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. 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 [ 2007 (12) TMI 11 - SUPREME COURT ]. As per showing of the appellant, once he is communicated with the copy of adjudication order by e-mail on 27-7-2018, he would be justified in preferring appeal on 25-9-2018 before the Commissioner (Appeals), which is within the period of limitation of 60 days from the date of communication of the order, as the appellant was actually communicated with the order on 27-7-2018. As such, the Commissioner (Appeals) has committed grave legal error in holding the appeal to be barred by limitation and that it has been filed beyond the period of 60 days from the date of communication of the order. The CESTAT has also committed legal error in perpetuating the illegality committed by the Commissioner (Appeals) by dismissing the appeal holding it to be barred by limitation by affirming the order passed by the Commissioner (Appeals). Conclusion - The limitation period for filing an appeal under Section 35(1) of the Central Excise Act begins from the actual or constructive communication of the order to the aggrieved party. The requirement for proof of delivery under Section 37C is essential for establishing the commencement of the limitation period. The substantial question of law is answered in favour of the assessee and against the Revenue. The matter is remitted to the Commissioner (Appeals) for adjudicating the appeal on its own merit in accordance with law, expeditiously, as the appeal is old one and required to be decided expeditiously. Case-Laws Central Excise Fri, 07 Mar 2025 00:00:00 +0530