2019 (1) TMI 374 – CESTAT NEW DELHI – TMI – Condonation of delay in filing appeal – Non-Communication of Order – absence of any proof of service of either show cause notice or any subsequent notice of personal hearing upon the appellant – Section 37C of Central Excise Act – Held that:- The copy of Order-in-Original, apparently and admittedly, was received by the appellant only on 10th August, 2015. That too, it was not the certified copy. But still the Commissioner (Appeals) has held the appeal to be delayed for one year and 20 days. The period of limitation i.e. 60 days condonable by Commissioner (Appeals) for another 30 days has to reckon from 10.08.2015.
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The appellant herein has filed an affidavit deposing that the order got communicated to him only on 10.08.2015 – reliance placed in the case of M/s. T. Prabhakara Rao vs. Commissioner, Central Excise, Hyderabad-III [2008 (8) TMI 327 – CESTAT, BANGALORE], wherein it was held that appellant can prove non-receipt of order by fil
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ing Authority was received by the appellant only on 10th August, 2015. It is due to the said reason that the appeal was filed before Commissioner (Appeals) on 21st January, 2016 and that the same was well within the period of limitation but the Commissioner (Appeals) in sheer ignorance thereof has dismissed the appeal on the ground of limitation. Ld. Counsel has relied upon the case of CCE, Ludhiana vs. Best Dyeing reported in 2012 (27) STR 97 (P & H) to impress upon that when there is no evidence to prove that the order was ever served upon the appellant, no interference is warranted in the discretion in allowing the application seeking the condonation of delay. He has also relied upon the decision of Eblitz Inc. vs. Additional Commissioner, Service Tax, Bangalore reported in 2016 (45) STR 163 (Kar.), wherein it was held that limitation begins from the date of receipt of order. The order is accordingly prayed to be set aside and the appeal is prayed to be decided on merits. 3. Whi
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to this effect is on record wherein it is deposed, in addition, that the appellant never received the impugned show cause notice. There is no proof of delivery/service by the Department. It is apparent from the Order-in-Original that the assessee did not file reply to the show cause notice nor attended the personal hearing as were fixed by the Assistant Commissioner. Ex-parte Order-in-Original dated 31.12.2014 support the appellant contention that too in absence of any proof of service of either show cause notice or any subsequent notice of personal hearing upon the appellant. It is also apparent that the said order was dispatched at the old address of the appellant. 5. Though Department s contention is that the same was dispatched vide registered post and no acknowledgement due has been received. But in view of the above discussed facts and circumstances, the mere dispatch of OIO by registered post is not sufficient. 6. As per Section 35 of Central Excise Act, appeal to Commissioner
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rtment is not applicable to present facts. The finding of Commissioner (Appeals) is therefore opined to be wrong in view of the above observed circumstances. 7. The appellant herein has filed an affidavit deposing that the order got communicated to him only on 10.08.2015. While relying upon the decision of M/s. T. Prabhakara Rao vs. Commissioner, Central Excise, Hyderabad-III reported in 2009 (238) ELT 791 (Tri.-Bangalore), wherein it was held that appellant can prove non-receipt of order by filing affidavit and that the same is not rebutted for want of the proof of dispatch by the Revenue for no acknowledgement produced, the Tribunal is empowered to condone the delay, I hereby condone the impugned delay. 8. However, keeping in view that the Commissioner (Appeals) has dismissed the appeal in limini on limitation and has not given any findings on the merits of the appellant, I hereby remand the matter to Commissioner (Appeals) for adjudication on merits. Resultantly, appeal in hand is a
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