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2019 (4) TMI 1005 - AT - Service TaxMaintainability of appeal - appeal has been dismissed for the reason that it was not filed within the period stipulated in Section 85 (3) of the Finance 1994 - HELD THAT:- In the present case it is not in dispute that the order passed by the Assistant Commissioner (STC) was sent to the appellant by speed post on 16 January, 2012 and was not sent by registered post with acknowledgment due. At the relevant time there was no provision for sending the order by speed post. The Commissioner (Appeals), after noticing that the order was dispatched on 16 January, 2012 by speed post, presumed that it should have been delivered within 15 to 20 days. The order dated 9 January, 2012, passed by the Adjudicating Authority, was not sent to the appellant by either of the modes prescribed under Section 37(C) of the Central Excise Act. The deeming provision contained in Sub-Section (2) of Section 37(C) of the Central Excise Act could not, therefore, have been resorted to by the Adjudicating Authority. The Commissioner (Appeals) was, therefore, was not justified in observing that since the order was sent by speed post on 16 January 2012, it should be deemed to have been served on the appellant within 15-20 days from the date of dispatch. The appeal was required to be filed, within 3 months from the date of receipt of the decision or order of the adjudicating authority - The Commissioner (Appeals), therefore, committed an illegality in holding that the appeal had been filed not only beyond the statutory period of limitation but also beyond the extended period of limitation provided for under in Section 85(3) of the Act. Appeal allowed - decided in favor of appellant.
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