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2021 (8) TMI 100 - AT - Central ExciseCondonation of delay in filing appeal - sufficient cause for delay or not - time limitation - appeal dismissed on the ground that the same is barred by time invoking section 35(1) of Central Excise Act, 1944 - HELD THAT:- There are no fault on the part of the appellant to form a reasonable apprehension of receiving the order not prior than 2 to 3 years. Commissioner (Appeals) has considered the date of communication of order dated 31.10.2017 i.e. 10.11.2017 on which date the department mentioned to have despatched the said order to the present appellant by speed post. First of all, date of despatch cannot be the date of communication. As per General Clauses Act, dispatched letter cannot be presumed to be delivered before 15 days of date of despatch. Secondly, despatching the order by speed post is not acceptable mode of service. Section 35F of Central Excise Act mandates that the appeal before Commissioner (Appeals) is to be filed within 60 days of receipt of the order by Original Adjudicating Authority. In addition, it mandates that the Commissioner (Appeals) can condone the delay on sufficient cause being shown but not beyond the period of 30 days from the expiry of said period of 60 days - Commissioner (Appeals) had no option to condone the delay which involves more than 90 days from the date of receipt of the order challenged before him. Seen from that angle, there seems no infirmity in the order under challenge. The appellant has sufficient cause for filing the appeal on 13.8.2019 against Order of 31.10.2017. Accordingly, said delay is hereby condoned - the matter is remanded back to Commissioner (Appeals) for adjudicating the matter on merits - Appeal allowed by way of remand.
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