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2021 (8) TMI 1161 - AT - Service TaxDelay in filing of appeal before the Commissioner (Appeals) - Non-Receipt of Order-in-original - Recovery of service tax - Even the SCN also not come to the notice of the appellant till the recovery proceedings were initiated against him - principles of natural justice - HELD THAT:- It is apparent that the appellant could not appear before the Original Adjudicating Authority despite three opportunities for hearing was afforded to the appellant. But from the arguments of the appellant, it is coming apparent that appellant in-fact, was not served with even with the copy of Show Cause Notice which became the reason for him to not to appear before the Original Adjudicating Authority and the same was the reason for acquiring no knowledge of Order-in-Original dated 16.11.2018 till the recovery proceedings got initiated against the appellant. The affidavit to this effect is placed on record. Mere dispatch of the order cannot be considered as service. The period of 2 months for filing the appeal has to reckon not from the date of order announced but from the date of receipt of said order by the assessee in terms of Section 35 of Central Excise Act, 1944. Section 37 C further provided the mode of service. In view of those statutory provisions, it is not held appropriate to consider the proof of dispatch as sufficient proof of service - the circumstances reflect no fault on part of the appellant for while approaching Commissioner (Appeals) with his grievance. Since admittedly no acknowledgement receipt was received by the Revenue, question of the production thereof on the record does not at all arise - there are no option but to hold that the Original Adjudication order was not received by the appellant prior to 20th February, 2019. The appeal filed before Commissioner (Appeals) on 18.04.2019 was very-much within the period of two months as is required under section 35 of Central Excise Act. Commissioner (Appeals) definitely erred while rejecting the appeal on the ground of being barred by time. Appeal allowed by way of remand.
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