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2024 (2) TMI 617 - CESTAT MUMBAIRefund claim - time limitation - date of service of the order - determination of delay - appeal filed belatedly beyond the prescribed period of 60 days in terms of Section 85(3A) of Finance Act, 1994 or not - HELD THAT:- There is no specific date mentioned either in the face of the order or the date of the order in the preamble. Further, there is no evidence on record before me to state that the appellant had received the original order in time and there was delay in filing the appeal beyond the prescribed 60 days time. In the absence of any evidence or documents produced by the Department for dispatch of the original order and its receipt by the appellant; or by any independent evidence, such as records of the postal authorities to support the same, the stand taken in the impugned order cannot be accepted that the original order was sent in time and the delay in filing appeal is on account of the appellant. By taking note of the claim of the appellant that the said original order was received on 26.11.2018, it is found that the appeal before the Commissioner (Appeals) had been filed on 23.01.2019 i.e. within 57 days. Thus, appeal filed by the appellant is eligible to be considered under Section 85(3A) of the Finance Act, 1994. The appeal is allowed by of remand to the Commissioner (Appeals) for fresh decision on merits.
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