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2019 (12) TMI 10 - CESTAT NEW DELHIService of order - compliance with the time Limit for filing appeal - whether the order dated 29.08.2017 was delivered to the appellant on 12.09.2017 or the order was delivered on 06th August, 2018 by hand delivery/11th August, 2018 through speed post, and the time limited prescribed under Section 35(1) of CEA, 1944, has been adhered to or otherwise? - difference of opinion - present matter has been referred to third member by Hon’ble President on account of difference of opinion in the Bench. HELD THAT:- The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187517IN issued on 01.9.2017 and the envelope bearing speed post no. ER956130766IN with its contents received by the Appellant on 11.8.2018 are also presented. The size of the former envelope is of 23cm×10cm and is a window envelope, whereas the second one is of 27cm×12cm size. On examination of these envelopes, it has been fairly accepted by all concerned that the first envelope is not fit enough to contain the order dated 29.08.2017, which of eleven pages and legal size paper. The learned Commissioner (Appeals) on the basis of the report of the Adjudicating Authority dated 20.11.2018 arrived at the conclusion that the Order-in-Original dated 29.08.2017 has been sent by speed post no. ER9241875719IN dated 01.09.2017 and thus the procedure prescribed under Section 37C of the Central Excise Act, 1944 has been complied with since the speed post has not been returned by the postal authorities to the Department. Also, from the correspondences independently undertaken by the learned Commissioner (Appeal) with the postal Department it was revealed that the said speed post letter was delivered - the appellant even though not disputed the receipt of the said speed post letter no. ER9241875719IN dated 01.09.2017 but contended that it was a letter written by the Range Superintendent to the Appellant in the context of applicability of service tax on the License/royalty fees, and the said envelope did not contain the adjudication order dated 29.08.2017 issued by the Assistant Commissioner. The department could not place any evidence to rebut the said claim of the Appellant. In the present case the appellant could able to demonstrate and rebut the presumption that the order dated 29.08.2017 could not have been delivered to them through the speed post and in fact they have not been communicated about the said Order on 12.9.2017 as held by the Ld. Commissioner(Appeals). Therefore, the finding of the learned Commissioner (Appeals) is unsustainable. In their separate orders, Hon’ble President and Hon’ble Technical Member have arrived at the same conclusion that the Order-in-Original is claimed to have been dispatched through Range office. Examination of the speed post register maintained at the division office indicates the speed post. The findings and conclusion of the Hon’ble President that order dated 29.08.2017 has been communicated to the Appellant only on 06.08.2018, and the Appeal has been filed before Commissioner(Appeals) within the time limit prescribed under Section 35(1) of CEA,1944, is agreed upon - the matter is remanded to the learned Commissioner (Appeal) to decide the issue on merits. This order may be placed before the Division Bench for passing the Final Order.
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