JUDGMENT
Mishra. J.
1. This appeal has come to us for a petition under Article 226 of the Constitution of India, for setting aside an order of the Customs, Excise and Gold Control Appellate Tribunal under which the statutory appeal under Section 35-B of the Central Excise and Salt Act, was dismissed on the ground that it was presented after the expiry of the period of limitation.
2. Although we have to deal with the limited question whether the view taken by the learned single Judge and the Tribunal that the appeal was barred by limitation is correct or not, we may take notice of a few facts which show the circumstances under which the appeal was preferred. Messrs. K.J. Chacko Structural Engineering Works at Visakapatnam were assessed to excise duty of Rs. 99,919-30 on 111.6999 KTS of steel structurals valued at Rs. 6,66,128-65 fabricated and removed during the period from 1-3-1986 to 6-3-1989 under Rule 9(2) read with Section 11-A of the Central Excises and Salt Act, 1944. One K.B. Chacko (since deceased) who represented M/s. K.J. Chacko Structurals Engineering Works, was informed about the above order dated 6-4-1990 but when it is not known. No appeal, however, was filed by him or any other person claiming through him until K.J. Chacko’s death on 14-4-1991 and even thereafter until a memorandum was presented after the alleged delay of 752 days along with a petition for condoning the delay in filing the appeal by his wife, one of the legal heirs of late K.J. Chacko. In the affidavit that she filed in support of the petition for condonation of delay she stated inter alia that her husband died on 14-4-1991, the affairs of her husband’s company were not known to her or her son, she knew about the order only when neighbours of her old house informed her that some revenue authorities had come to that house, and that some proceedings were pending ainst her husband and that, “… I approached the Revenue authorities to find out about the proceedings and they showed me an order dated 6-4-90 passed by Collector of Central Excise, Guntur, against K.J. Chacko Structural Engineering Works, directing them to pay a sum of Rs. 99,919-30 on the allegation that the steel structurals were fabricated and removed during the period from 1-3-1986 to 6-3-1989 under Rule 9(2) [read with] Section 11-A of the Central Excises and Salt Act, 1944.
3. One of the Members of the Tribunal, however, rejected the memorandum of appeal stating as
follows:
We have given our anxious consideration to the plea urged by the learned Counsel for the petitioner and also gone through the entire records. Admittedly Shri Chacko was alive for about a year after the impugned order was passed and the order itself discloses that the same was despatched to Shri Chacko on 30-4-1990 by the Superintendent. The learned Counsel on a query from the Bench replied that he does not dispute the fact of receipt of the impugned order and admits that service of the order as per law was complete. The only medical certificate made available is the one dated 20-11-90 and for the period between April 90 and November 90 there is no explanation as to why no steps were taken for filing the appeal. On a further query from the Bench, the learned Counsel stated that the rest advised was for a period of two months from November 90. Since Shri Chacko did not diligently pursue the matter the plea that the legal representatives were not aware of the state of affairs till receipt of the revenue recovery proceedings were initiated could not be accepted in the facts and circumstances of this case (sic). The delay is long and inordinate, i.e., two years. There is no adequate, sufficient or proper explanation for the same meriting condonation. We, therefore, in the facts and circumstances of the case are constrained to hold that there is no valid, proper or sufficient reason for condonation of delay. In view of the above, the application for condonation of delay is dismissed. Consequently, the stay petition and the appeal also stand dismissed.
and the other Member agreed but observed as follows:
I agree. However, I observe that the person aggrieved in the proceedings was Shri Chacko and in law the right has been granted to the aggrieved party to file the appeal. No reason has been shown as to why the aggrieved party could not file appeal within the stipulated period. A plea has been taken that Shri Chacko was sick, and therefore could not file the appeal after the order was received and till has death, he was bed-ridden. We observe that a medical certificate produced merely shows that the appellant was advised rest from March 90 to April 90 and thereafter a medical certificate has been produced wherein the rest advised is for a period of two months from Nov. 90. There is nothing to show that Shri Chacko was in such a state that he could not manage the affairs and he could not file the appeal within the stipulated time….Since aggrieved party, viz., Shri Chacko when he was alive did not find it necessary to file the appeal within the stipulated time the legal representatives cannot revive it just because at a later date they felt that an appeal should be filed. The application for condonation of delay is therefore dismissed and consequently the stay petition and appeal also stand rejected.
4. The appellants who are the widow and children of the deceased K.J. Chacko moved this Court in
W.P. No. 8621 of 1992. The learned Judge has dismissed the writ petition stating inter alia as follows:
The Tribunal has rightly taken the view that the delay in filing the appeal had not been explained. It was not disputed before the Tribunal that the impugned order in question was received by Mr. Chacko and the service was complete as per law. In those circumstances, it was the duty of the parties to explain as to why Mr. Chacko did not file any appeal. The only explanation sought to be attempted was that he was not well. The petitioners have not made any attempt to prove the illness during the relevant period. It is seen from the records as pointed out by the Tribunal that the order under appeal was despatched to Mr. Chacko on 30-4-1990. In the normal course, it would have reached him in the first week of May 1990. Yet, there is no explanation as to why he did not file any appeal within time. The only medical certificate that was produced before the Tribunal was for the period of November, 1990. The order of the Tribunal also shows that some evidence was placed to show that the deceased was advised rest between March and April 1990. It would not be sufficient to prove that Mr. Chacko was not in a position to file an appeal or that he was bed-ridden during that period.
5. A statutory appeal against a decision or order passed by the Collector of Customs as an
adjudicating authority, as in the instant case, is, provided under Section 35-B of the Central Excises and Salt Act, hereinafter referred to as “the Act”. Sub-section (3) thereof states that,
Every appeal under this Section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Central Excise, or as the case may be, the other party preferring the appeal.
Sub-section (5) thereof reads as follows:
The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in Sub-section (3) or Sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
The starting point of the limitation thus, is the date of the communication of the order to the party preferring the appeal. In the instant case, the party preferring the appeal are the heirs and legal representatives of the late K.J. Chacko. Since they only represent the deceased, communication of the order to him, (K.J. Chacko) can be safely taken to be the communication of the order to the appellants, i.e., the heirs and legal representatives of the deceased party. The period of three months will, therefore, in the instant case may be found running out after the communication of the order if the appeal is not filed within three months from the date on which the order sought to be appealed against was communicated to late K.J. Chacko. Once this fact is established that the order had been communicated to the party concerned the reckoning date of the period of limitation is known. The question of condoning the delay in filing the appeal shall become relevant only when it is established as a fact that the period within which the appeal should have been filed had expired. We have noticed how the Tribunal and the learned Single Judge who has disposed of the writ petition, have entered into the question of sufficiency of the cause for the condonation of delay after taking as concluded that the impugned order of the Collector had been communicated to late K.J. Chacko in accordance with law, but we have not been able to find how it is assumed on that basis that the appeal had not been presented within three months from the date of the communication of the order of the Collector to either late K.J. Chacko or the appellants. All the above, if any meaning can be attached to the statement of the learned Counsel for the appellants before the Tribunal that the impugned order was despatched to late K.J. Chacko on 30-4-1990 by the Superintendent and that the learned Counsel representing the appellants on a query from the Bench replied that he did not dispute the fact of receipt of the impugned order and admitted that service of the order as per law was complete, in our opinion, is not a material to show that the order was received not within 3 months from the date of the communication of the order unless the date of despatch of the order is taken as the date of communication.
6. The ordinary meaning of the word “communicate” is to impart, confer or transmit information.
In a given case it is possible to say that there has been a communication of the order without awaiting for the receipt thereof as has been pointed out by the Supreme Court in the case of State of Punjab v. Khemi Ram . The Court may not accept the view that the date of the actual receipt of the order is the date of communication for reasons as are indicated in the said judgment. But when a right of appeal is conferred it has to be accepted that only such a person can appeal who has got the knowledge of the order against him. In such a case one may be inclined to take the view as has been taken by the Supreme Court in Harikissen v. State of Maharashtra that communication will mean imparting to the person concerned sufficient knowledge of the factum of the order. In the instant case, there is nothing on the record from which it can be inferred that there has been a “communication” of the order to K.J. Chacko on a date vepond (sic) [before?] the period of limitation; unless that is known it is not possible to know how many days’ delay occurred in presenting the appeal and cause shown in not filing the appeal within the said period is sufficient or not. Since without knowing the nature of the order that is passed nobody can file an appeal the date of despatch cannot become the date of communication.
7. It is not that the view that we have taken has not been accepted by the Tribunals dealing with the customs and excise cases. There are many reports showing that when the period of limitation was sought to be reckoned from the date of the despatch of the order, Tribunals found that to be not proper. One such case is found in Manoharlal G. Jewellers v. Gold Control Administrator .
8. Our attention has been drawn, however, to the observations of one of the Members of the Tribunal that the person aggrieved in the proceeding was Shri Chacko and in law the right has been granted to the aggrieved party to file the appeal and, “no reason has been shown as to why the aggrieved party could not file appeal within the stipulated period.” If this observation has been made to indicate that heirs and legal representatives of late K.J. Chacko are not persons aggrieved, we are afraid, there shall be a serious error of law if the appellants are denied the right of appeal on this ground. They are going to suffer the liabilities of late K.J. Chacko as heirs and legal representatives. They have to be accepted to have locus standi as persons aggrieved to prefer the appeal. We do not say anything more in this behalf for we do not know whether the Member who made the above observation intended to dismiss the appeal on the ground of locus standi of the appellants.
9. Since however we have come to the conclusion that it is necessary before it is said that the appeal was filed beyond time and also if it was filed beyond time what was the period of delay for showing sufficient cause when the order was made known to the person aggrieved, and there is no such finding recorded by the Tribunal or the learned Judge, we are inclined to interfere with their respective orders. We have, however, not entered into any question as to the date of communication of the order to the appellants or late K.J. Chacko for, the exercise in this behalf has to be done by the Tribunal first.
10. In the result, the appeal is allowed, the order of the learned single Judge dated 1-7-1992 in W.P. No. 8621 of 1992 and the order of the Customs Excise & Gold (Control) Appellate Tribunal in E/SB/COD/527/92, E/SO/Stay/903/92 in A. No. E/SB/1304/92 dated 25-6-1992 are set aside. The case is remitted to the first respondent-Tribunal for a rehearing and disposal in accordance with law. No costs.