1. Order-in-Appeal No. 561 to 566/CE/IND/84 dated 30.9.1984 had been passed by the Collector (Appeals), Central Excise, New Delhi. This order related to the appeals preferred by M/s. R.R. Tea Co. as well as M/s. R. OM Tea Co. The Collector, Central Excise, Indore, had filed an appeal against the said order mentioning in column 3 of the appeal that no copy of the order-in-appeal dated 30.9.1984 had been received by the Collector in spite of telegrams. An application for stay had also been filed along with the appeal. Subsequently since the registry had informed the appellant Collector that as the order-in-appeal relates to six different appeals, the appellant Collector will have to file five supplementary appeals. It is thereafter that five supplementary appeals have been filed. In connection with those supplementary appeals applications have been filed for condonation of delay and also mentioning that as separate appeals had been filed in pursuance of the directions of the registry and thus the delay, if any, was unintentional and bona fide, the delay may be condoned. Stay application has been filed in connection with these supplementary appeals also. Under order dated 21.5.1985 the appeal Nos. 462/85 and 894 to 898 of 1985 had been distributed in the same order as mentioned in the Appendix of the order-in-appeal.
2. We have heard Shri K.C. Sachar, 3unior Departmental Representative for the appellant Collector and Shri P.N. Kaul, Advocate, for the two tea companies who are the respondents in the appeals. We have heard them on the question of condonation of delay as well as the stay applications.
3. As mentioned earlier, petitions for condonation of delay have been filed with reference to the supplementary appeals only and not the main appeal. Shri Kaul therefore, contended that in absence of the application for condonation of delay the main appeal is certainly liable for rejection as having been tiled out of time. He contended that the order-in-appeal is dated 30.9.1984 and from the endorsement on the photostat copy produced by the respondents it is seen that the copy had been signed on 16.10.1984 and must have been despatched to the applicant Collector also by that time and so the first appeal (Appeal No. 462/85-D) had been preferred out of time but without an application for condonation of delay.
4. Shri Sachar has referred to the affidavit dated 26.6.1985 of the Deputy Collector attached to the office of the applicant Collector in which he has sworn that the copy of the order dated 30.9.1984 had not at all been received from, the Collector (Appeals) in spite of telegraphic request also and that it was after the receipt of the copy sent to the Assistant Collector who had in turn sent it to the applicant Collector under his letter dated 4.1.1985 that the appeals had been prepared and filed. When Shri Kaul was asked whether his clients controvert the contents of the said affidavits, he stated that his clients do not do so and the facts stated in the affidavit may be taken as correct.
5. The argument for the applicant Collector is that it was from the date of receipt of the copy of the order intended for the Collector that limitation would commence to run with reference to the appeal to be preferred by the Collector and that as the copy had not at all been received, as mentioned in the affidavit, there is no question of bar of limitation with reference to the main appeal or even the supplementary appeals.
6. But Shri Kaul contends to the contrary. He contends that under Section 35B(3) of the Central Excises and Salt Act, the appeal to this Tribunal should be filed within 3 months from the date on which the order sought to be appealed against is communicated to the Collector and that the word 'communicated' would only mean that the order should have been posted in the post office and not that it should have reached the Collector. He contends that the dictionary meaning of the word 'communicate' is "to impart, to transmit" and this meaning would support his contention.
7. We are unable to accept the said contention. The communication referred to in Section 35B(3) is for purposes of intimating the Collector of the result of the appeal in order to enable him to prefer a further appeal if he is so advised. An appeal could be so preferred by him only after he knows of the result and, in fact, receives a copy of the order so that he may peruse the same and make up his mind whether a further appeal is to be preferred. This would be possible only after he comes to know of the reasons contained in the order after a perusal thereof. Therefore, the contention that the period of limitation will have to be computed from the date when the copy of the order was put into transmission by being posted, irrespective of the fact that whether it had actually reached the Collector or not, is not acceptable.
8. Shri Kaul further referred to the provisions of Section 27 of the General Clauses Act, Section 3(c) of the Indian Post Office Act, Section 114 of the Evidence Act and the decisions of Harcharan Singh v.Shiv Rani (AIR 1981 SC 1284) and Ganga Ram v. Phulwati (AIR 1970 Allahabad 446).
9. Section 27 of the General Clauses Act is to the effect that where under any Act a document is required to be served by post then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by Regd. post a letter containing the said document. It further lays down that unless the contrary is proved, such service shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. Thus this section lays down a presumption in respect of service by post where such a mode of service is mentioned in the Act but the said presumption is specifically made a rebuttable presumption. Section 114 of the Evidence Act contains Illustration (f) which reads that there was presumption that the common course of business has been followed in particular cases. But it is further mentioned that when the question is whether a letter had been received, which had been posted, the fact that the usual course of post was interrupted by disturbances would also have to be considered to decide whether the presumption above-mentioned should be drawn. So far as Section 3(c) of the Indian Post Office Act it reads as follows:- "the delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee." 10. It is, therefore, seen that these statutory provisions lay down a presumption of service in the normal course of an article despatched by post but that such a presumption is specifically mentioned to be a rebuttable presumption. In the Supreme Court judgment cited by Shri Kaul it is found stated at page 1288, referring to the provisions of Section 27 of the General Clauses Act as well as Section 114 of the Evidence Act, that these presumptions are rebuttable and that in the absence of proof to the contrary the presumption of proper service of effective service would arise. To similar effect is the decision of the Allahabad High Court also.
11. In the present instance it has been already noted that an affidavit has been sworn to by an officer in the office of the applicant Collector that the order-in-appeal dated 30.9.1974 (sic) had not at all been received in the office of the applicant Collector and that in spite of subsequent telegrams also the copy has not yet been received.
As earlier mentioned, the facts sworn to in the said affidavit are not challenged by the respondents. Therefore, in the present instance the presumption of service has been effectively and fully rebutted. It has, therefore, to be held that the applicant Collector has proved that he is yet to receive the order-in-appeal dated 30.9.1984.
12. Hence, in the peculiar circumstances of these appeals, it has only to be held that the period of limitation had not yet even commenced to run, leave alone, run its course to its completion. This would be so with reference to the main appeal as well as the supplementary appeals.
We therefore hold that there is no question of condonation of delay with reference to the main appeal (462/85-D) and that even with reference to supplementary appeals there is no need to condone any delay.
13. Then we took up for consideration the applications for stay of operation of the order-in-appeal. The learned Counsel for the two respondents stated that both the respondents had already received the amounts of refund on 10.5.1985. In view of this, we hold that the applications for staying of the operation of the impugned order-in-appeal no longer survive. The applications for stay are accordingly dismissed as infructuous.