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2018 (8) TMI 1592 - AT - Service TaxDelay in filing appeal - appeal was filed 69 days after the receipt of order-in-original without a delay condonation application - Held that:- It is found that the order-in-original dates 31.03.2017 and the statement of fact indicates that it was served upon the appellant on 23.04.2017 i.e. within 3 weeks of such pronouncement of order-in-original but the Commissioner (Appeals) has extracted Section 85(3A) and proviso appended to it to give his finding that he was not competent to condone the subsequent delay in the absence of an application to that effect. The appeal can be presented within two months from the date of receipt of order-in-original and in the instant case, statement of fact reveal that it was received on 23.04.2017 and the same statement of fact is supposed to be verified by the appellant himself, which is also done in the instant case. The gap between the pronouncement of order-in-original and its communication, going by the date mentioned in the statement of fact is just 23 days. Therefore it cannot be believed to be untrue - in view of the proviso enabling the Commissioner (Appeals) to allow the appeal to be presented after two months but within a further period of one month assigning sufficient reason to his satisfaction, such presentation can be accepted by him before proceeding to hear the case in its totality, which is not done at his end. The appeal is filed within the stipulated period and to the disagreement of the Commissioner, within his condonable period. Hence the same should have been admitted at his end and the issue could have been settled on merit - Appeal is allowed and the matter is remitted back to the Commissioner (Appeals) for hearing the appeal afresh on merit.
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