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2020 (10) TMI 1064 - AT - Service TaxDelay in filing of appeal - Proof of delivery of adjudication order - 100% EOU – STPI - Refund of unutilized CENVAT credit - input services used for providing the output services exported during the period October 2009 to March 2010 - rejection on the ground of time limitation - Section 37C of Central Excise Act, 1944 - HELD THAT:- As per the respondent, the Order-in-Original dt. 29/02/2012 was issued on 09/03/2012 and the appellant has filed the appeal before the Commissioner on 05/02/2013 which is beyond the period as prescribed in Section 85(3A) of the Finance Act, 1994. We further find that the Department has not been able to establish by any cogent evidence that the Order-in-Original was actually delivered to the appellant. Further we find that the appellant was not aware of the issuance of the Order-in-Original dt. 29/02/2012 and they wrote 3 follow-up letters dt. 11/07/2012, 21/08/2012 and 17/10/2012 enquiring about the status of the adjudication. These letters, in spite of the fact that they were received by the Department, were not responded to at all by the Department and the Department did not inform the appellant regarding the status of their adjudication. Not only this, the appellant has also filed a RTI application before the CBEC but the same has not yielded any result. The High Court of Rajasthan in the case of M/S RP CASTING PVT LTD VERSUS THE CUSTOM, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI AND ANR [2016 (6) TMI 996 - RAJASTHAN HIGH COURT] and M/S. VINOD CHOUDHARY VERSUS UNION OF INDIA & OTHERS [2016 (5) TMI 834 - RAJASTHAN HIGH COURT] have also categorically held that the Department has to prove the delivery of the orders and dispatch of the order is not sufficient for the purpose of calculating the period of limitation for filing the appeal before the Commissioner(Appeals). The appeal of the appellant is within time from the date of receipt of Order-in-Original - case remanded to the Commissioner(Appeals) - appeal allowed by wayof remand.
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