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2022 (3) TMI 321 - MADHYA PRADESH HIGH COURTMaintainability of appeal - applicability of time limitation for preferring an appeal - proper service of the impugned order or not - HELD THAT:- From a bare perusal of Sub-section (3A) of Section 85 of the Act 1994, it is luminescent, that an appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 relating to service tax, interest or penalty under this Chapter. The proviso attached to sub-section (3A) provides, that if the Commissioner of Central Excise (Appeals) is satisfied that the appeal was presented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. Thus, the total period, including the extended period to prefer an appeal under Section 85 of the Act 1994, is three months. The provisions of Section 85 nowhere states that limitation shall commence from the date when the order is served upon the person concerned or his authorized agent. There is no dispute to the fact that the order passed by the Original Authority/Assessing Authority was issued against the petitioner and accordingly, description of the petitioner was styled as name of the parties in the order itself. Secondly, the order was required to be served upon the petitioner in terms of Clauses (1) and (3) of the instructions contained in the order dated 31- 01-2018 - Apparently, the respondent does not dispute that the order of the Original Authority/Assessing Authority was not served upon the petitioner and there is no material on record to show that the impugned order dated 31-01- 2018 was ever served upon the petitioner. On the contrary, on the strength of the endorsement made at the bottom of the order dated 31-01-2018, it is stated that the same was received by Manoj Kumar Shrivastava on 11-4-2018, who was the legal representative of the petitioner. Thus, apparently there was no proper service of the impugned order dated 31-01-2018 passed by the Original Authority/Assessing Authority upon the petitioner, so as to enable him to prefer an appeal before the Commissioner of Central Excise (Appeals) in accordance with Section 85 of the Act 1994. The Hon’ble Supreme Court in catena of decisions has categorically held, that the rules of limitation are not meant to destroy the rights of the parties. The Courts are only required to ensure that, a litigant has not to take resort to dilatory tactics and has approached the Court bonafidely. The matter is remitted back to the Commissioner (Appeals) CGST, Customs & Central Excise, Bhopal to decide the appeals on merits in accordance with law, by affording proper opportunity of hearing to the petitioners - Petition allowed.
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