TMI Blog2014 (9) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the Commissioner (Appeals) is the normal period of delivery of latter by the Postal Authority. In my view, this presumption of the Commissioner (Appeals) is totally incorrect and there is no base for the same. If an order or letter has been despatched by the Department to an assessee by Registered Post AD, in term of the provisions of Section 114 of the Indian Evidence Act, it can be presumed to have been received by the assessee, and if the assessee claims that he did not receive the order/letter, the burden of proof is on him. even if the date of receipt is assumed to be on 14.04.2000 i.e. within a weeks time from the date of the order i.e. 07.04.2000, since the appeal had been filed on 14.09.2000, there would be delay of only two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I thus find that the impugned order is deemed to have been served on/received by the appellant within a week of the date of dispatch which is the normal period of delivery of letters by the Postal Authorities. The appellants have filed the appeal after more than two months from the date of dispatch of impugned order. I further find that the appeal under Section 35A of Central Excise Act, 1994 is required to be filed within three months from the date of receipt of the order but the appellants h ad filed the same after almost five months from the date of dispatch of impugned order. However, the period of further 30 days can be allowed for the sufficient cause but in this case the said period of thirty days has been expired. In the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, that as per the provision of Section 35 C, the order is to be despatch by registered post with Acknowledgement and there is no authority to presume that the order despatch by Register Post A.D would be received within one week that the Appellant had received the Assistant Commissioner s order only on 01.06.2000 and had filed the appeal on 14.09.2000 and as such there was delay of 14 days which was well within the condonation limit, that in any case even if from the Commissioner (Appeals) s order that the date of communication was 14.04.2000 is accepted, still there would be delay of only two months, which as per the Provisions of Section 35 at that time was well within powers of condonation limit, that Commissioner (Appeals) has not take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no base for the same. If an order or letter has been despatched by the Department to an assessee by Registered Post AD, in term of the provisions of Section 114 of the Indian Evidence Act, it can be presumed to have been received by the assessee, and if the assessee claims that he did not receive the order/letter, the burden of proof is on him. But the presumption can be made only about the receipt, not about the date of receipt. There is no basis for presuming that a letter/order despatched by Registered Post AD to an assessee would be received by them within weeks time. If the Department disputes the date of receipt as claimed by the appellant, the Department has produce the evidence by bringing on record acknowledge which wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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