THE COLLECTOR OF CENTRAL EXCISE, MADRAS versus M/S. M.M. RUBBER & CO. TAMIL NADU

Citation: [1991] 3 S.C.R. 862 · Decided: 04-09-1991 · Supreme Court of India · Bench: S. RANGANATHAN · Disposal: Dismissed

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Judgment (excerpt)

A 
THE COLLECTOR OF CENTRAL EXCISE, MADRAS 
v. 
M/S. M.M. RUBBER & CO. TAMIL NADU. 
SEPTEMBER 4, 1991 
B 
[S. RANGANATHAN, V. RAMASWAMIANDN.D.OJHA,JJ.] 
Central Excises & Salt Act, 1944-Section 35E-LeRi.vlative inten-
tion, indicated-Power under Section 35E-Nature of-Authority 
authorised to exercise a power-Failure to exercise-Effect of. 
C 
Central Excises & Salt Act, 1944-Section 35£(3)-Ca/cu/ation of 
the period of one year-Relevant date-"From the date of decision or 
order''-Construction. 
Central Excises & Salt Act, 1944-Section 35£-Co/lector's order 
dated 28. 11. 1984-Communicated on 21.2. 1984-Board's direction to 
• 
D Collector to move Tribunal for correct determination-Whether the 
adjudicating authority aggrieved of own order-Legality of action after 
the period of limitation. 
The appellant, an adjudicating authority held the demand from 
the respondent towards excise duty on biaxially oriental polypropylene 
J 
E films as set out in the show cause notice dated 25.10.1983 as barred by 
limitation and dropped further proceedings. A copy of the order 
despatched on 21.12.1984 was received by the respondent on 
21.12.1984. 
F 
The Central Board of Excise and Customs after consideration of 
the order, on U.12.1985 directed the appellant to apply under Section 
35E(l) of the Central Excises & Salt Act, 1944, to the Customs, Excise & 
Gold (Control) Appellate Tribunal for correct determination of the 
points arising out of the order dated 21.12.1984 and the appellant filed 
the application under section 35E(4) of the Act. 
G 
Before the Tribunal the respondent urged that the relevant date of 
the Collector's (adjudicating authority's) order for the purposes of 
Sedion 35E(3) should be taken as 28.11.1984 and not 21.12.1984 when 
it was received by the respondent and on that basis the order of the 
Board under Section 35E(l) of the Act. should be held as beyond the 
period of one year from the date of the decision or order of the 
H 
adjudicating authority and therefore the application before the Tri-
bunal was incompetent. 
862 
COLLECTOR v. M.M. RUBBER 
863 
The Tribunal dismissed the application holding that the applica-
A 
lion was not maintainable. 
_. 
In this appeal filed under Section 35L of the Act, the appellant 
contended that mere writing an order in file kept in the office was no 
order in the eye of law in the sense of affecting the rights of the parties 
for whom the order was meant and that though the order of the B 
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; that enabling the giving of the direction under 
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Section 35E(l) and the application under Section 35E(4) in pursuance of 
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that direction should he treated as if a right of appeal given to the c 
department; that the departmental authorities and the private parties 
were to he treated equally as aggrieved persons for the purposes of 
calculating the time for making the direction under Section 35E(3) of 
the Act. 
I 
On the question, what is the relevant date for the purpose of D 
calculation of the period of one year provided under Section 35E(3) of 
the Central Excises & Salt Act, 1944, dismissing the appeal, this Court, 
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HELD: 1. 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 therefore. The order or decision of E 
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 
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· 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 /ocuspaetentiae. Normally that happens when the order or F 
decision is made public or notified in some form or when it can he 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 pnrposes of 
determining whether the power has been exercised within the pres-
crihed time, [869D-F] 
G 
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2. If the intention or design of the statutory provision was to 
· protect the interest of the person adversely affected, by providing a 
remedy against the order or decision

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