Limitation — Date of judgment or date of communication of order.

The dispute in the present case was in regards to refund claim, the relevant date for computing limitation period should be counted from the date of order of the Commissioner (Appeals), which was dispatched on 10-1-2007 and received on 27-1-2007 by the assessee or the limitation period will start from the date of communication of order.

The Commissioner (Appeals) upheld the order of the Asst. Commissioners observing that as per the records, the order had been handed over to the postal authority at GPO on 10-1-2007 and, hence, the same has to be taken as the date of dispatch and the words ‘date of the order’ in clause (ec) of the Explanation (B) to section 11B of Central Excise Act mean the date of dispatch and not the date of communication of the order.

On appeal, the Delhi Tribunal observed that the limitation period prescribed u/s.11B for filing the refund claim is one year from the relevant date. Unlike the judgments of the Courts or Tribunal which are either dictated in the open Court or are pronounced in the open Court and thus the date of the pronouncement and the date of communication to the affected parties are the same, in case of adjudication of any dispute by the Departmental adjudicating authorities or the Commissioner (Appeals), the judgments are not pronounced or dictated in presence of the parties but are sent by post and, thus, there would be a time gap between the date on which the order has been signed, the date of dispatch and the date on which the order is received by the assessee. The point of dispute, thus, in the case was as to whether the words ‘date of such judgment, decree order or direction’ used in clause (ec) of explanation (B) to section 11B refer to the date of signing of the order or date of dispatch order or the date of actual communication of the order to the assessee. It is clear that when some order of Court or an authority affects as assessee, the limitation would start from the date on which the order was communicated to the assessee or the date on which it was pronounced or published so that the party affected by it has reasonable opportunity of knowing the passing of such order and what it contains. The Apex Court in the case of CCE v. M. M. Rubber Co., 1991 (SS) ELT 289 (SC) held that the limitation period would start from the date of the communication of the order and not the date of signing of the order or the date of dispatch and as such with regard to the order passed by the Dept. adjudicating authority or the Commissioner (Appeals) the words ‘date of judgment’ have to be interpreted as the date of communication of the order. Thus, the refund claim was within time and the impugned order rejecting the same as time-barred, was not sustainable.