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2021 (1) TMI 751 - AT - Central ExciseCENVAT Credit - capital goods - certain items viz. HR coils, MS angles, MS channels, MS plates, etc. - HELD THAT:- The Assistant Commissioner passed the Order-in-Original on 18/03/2019 but the same was not actually delivered to the appellant. The appellant only came to know on 12/03/2020 when they received a letter from the Superintendent informing them about the passing of the Order-in-Original and ordered to recover the credit of ₹ 15,52,986/- along with interest and penalties. Thereafter the appellant vide their letter dt. 16/03/2020 informed the Superintendent that they have not received the Order-in-Original and requested him to provide the certified copy of the said Order-in-Original and the appellant also requested the Department to provide the proof of service of the said order on them; but the Superintendent vide his email dt. 17/03/2020 only provided scanned copy of the Order-in-Original but did not provide any proof of service of the said Order-in-Original on the appellant. Since the Department has failed to prove the delivery of the Order-in-Original on the appellant, the date on which the appellant has actually received the scanned copy will be considered as the actual receipt and from that date, the appeal filed before Commissioner (Appeals) was within time. This issue has been considered in various decisions and it has been consistently held that the Department has to give proof of actual receipt of the order by the assessee and in the absence thereof, the date of obtaining copy of the order by the appellant will be considered as the date of receipt of the order. The impugned order dismissing the appeal on time bar is not sustainable in law - Case remanded to the Commissioner (Appeals) with a direction to decide the appeal on merits - appeal allowed by way of remand.
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