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2019 (1) TMI 374 - AT - Service TaxCondonation 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. 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 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. The delay is condoned - the Commissioner (Appeals) has dismissed the appeal in limini on limitation and has not given any findings on the merits of the appellant - matter remanded to Commissioner (Appeals) for adjudication on merits - appeal allowed by way of remand.
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