TMI Blog2014 (1) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the Appellate Authorities were fully justified that in view of Section 37C of the Act it is to be presumed that the said order was duly delivered to the petitioner-company. The presumption under Section 37C of the Act is rebuttable, but to rebut the same, the petitioner-company did not lead any cogent evidence. Merely an affidavit of the Director of the petitioner-company had been filed again stating that they had not received the order dated 2-1-2008 any time before 14-8-2008. Thus, it cannot be taken as an evidence to rebut the evidence led by the Revenue department which clearly established that the registered letter through which the order dated 2-1-2008 was sent was duly delivered to the petitioner-company on 3-1-2008 - No illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) imposed a tax of ₹ 19,10,774/- along with penalty of equivalent amount under Section 78 of the Finance Act, 1994. Copy of the said order was sent to the petitioner-company by registered post on 2-1-2008. Though against the said order the appeal could have been filed within 60 days of the receipt of the said order, yet the petitioner-company did not file any appeal against the said order on the pretext that no such order was ever communicated to the petitioner-company. It was alleged that when the petitioner-company received the letter dated 1-8-2008 from the Superintendent, Central Excise and Service Tax; Range-II with regard to payment of the service tax and penalty, the petitioner-company came to know that such an order was passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those evidence. The Commissioner of Appeals, Central Excise (1st Appellate Authority) vide order dated 4-1-2012 (Annexure P13), after considering the matter, came to the conclusion that the order dated 2-1-2008 was sent by registered post and not only the dispatch register showing the dispatch of the said letter had been produced but certificate from the Postal Department about the receipt of the said letter was also proved on record which clearly mentioned that the order dated 2-1-2008 was delivered to the addressee on 3-1-2008. Thus, from those record produced by the Revenue it was held that in view of Section 37C(1)(a) of the Act the said order was deemed to have been served and it was for the assessee to rebut the presumption which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any. The presumption under Section 37C of the Act is rebuttable, but to rebut the same, the petitioner-company did not lead any cogent evidence. Merely an affidavit of the Director of the petitioner-company had been filed again stating that they had not received the order dated 2-1-2008 any time before 14-8-2008. Thus, it cannot be taken as an evidence to rebut the evidence led by the Revenue department which clearly established that the registered letter through which the order dated 2-1-2008 was sent was duly delivered to the petitioner-company on 3-1-2008. In this regard, the Tribunal has relied upon the judgment of this Court in the case of CCE, Ludhiana v. Mohan Bottling Co. (P) Ltd., 2010 (255) E.L.T. 321. We do not find any illegalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act ) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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