TMI Blog2014 (4) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or delivery of such decision/order sent by post has to be ascertained since it is only that date on which delivery of order sent by post shall deemed to be the date of service. In the present case no such date has been ascertained by Appellate Authority and it has simply presumed that since order was sent by registered post, it must have been served upon petitioner and appeal filed in 2013, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) ] being barred by limitation, inasmuch as order, appealed is dated 21.01.2011 while appeal was preferred in 2013. 3. The stand taken by petitioner is that a copy of order dated 21.01.2011 passed by Assistant Commissioner, Central Excise, Division Varanasi was never delivered or served upon him in the manner prescribed in Section 37C(1) of Act, 1944. It is only when he subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summons or notice, or sending it by registered post with acknowledgement due, 1[or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sub-section (1)] or a copy thereof is affixed in the manner provided in sub-section (1). 6. In the present case, it is not disputed that order dated 21.1.2011 was dispatched to the petitioner by registered post. Whether acknowledgement due was appended to the registered post or not, is not clear. Be that as it may, in order to attract deeming provision regarding service under sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by limitation or not. The Commissioner (Appeals), therefore, has not examined the matter in correct perspective. The appellate order, therefore, cannot sustain. 8. The writ petition is partly allowed. The order passed by Commissioner (Appeals) dated 16.7.2013 is, therefore, set aside and the matter is remanded to Commissioner (Appeals) to consider petitioner's appeal, afresh, in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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