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2015 (7) TMI 709 - ALLAHABAD HIGH COURT

2015 (7) TMI 709 - ALLAHABAD HIGH COURT - 2015 (325) E.L.T. 524 (All.) , 2015 (40) S.T.R. 882 (All.) - Denial of refund claim - Bar of limitation - Date of receipt of order - Held that:- Order in original was served upon an employee of the appellant on 26th June, 2013 under Section 35-O of the Central Excise Act provides the proceeding for computing the period of limitation prescribed for an appeal and stipulates that the day on which the order was served has to be excluded. Therefore, while cou .....

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erved upon them on 28th June, 2013. - Decided in favour of assessee. - Central Excise Appeal No. - 125 of 2015 , Central Excise Appeal No. - 126 of 2015 - Dated:- 8-7-2015 - Hon'ble Tarun Agarwala And Hon'ble Surya Prakash Kesarwani,JJ. For the Appellant : Ashok Bhatnagar For the Respondent : Vinod Kant ORDER We have heard Sri Ashok Bhatnagar, the learned counsel for the appellant and Sri Prateek Chandra, the learned Counsel holding brief of Sri Vinod Kant, the learned counsel for the re .....

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of two months. This appeal was however, rejected by the Commissioner (Appeals) by its order dated 25th September, 2013 on the ground of limitation. The Commissioner (Appeals) held that there was delay of two days and that the appellant had misrepresented the fact that the order in original was served on 28th June, 2013, whereas it was actually served upon his employee on 26th June, 2013 and on this misrepresentation, the appeal was dismissed as being barred by limitation. The appellant, being ag .....

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no misrepresentation. Section 85 of the Finance Act provides as under: "Section 85. Appeals to the [Commissioner] of Central Excise (Appeals).- (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) ........... (3A) An appeal shall be presented within t .....

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nth." A perusal of Section 85(3A) of the Finance Act (2) of 1994 indicates that the appeal has to be presented within two months from the date of receipt of the decision or order. Admittedly, the order in original was served upon an employee of the appellant on 26th June, 2013 under Section 35-O of the Central Excise Act provides the proceeding for computing the period of limitation prescribed for an appeal and stipulates that the day on which the order was served has to be excluded. Theref .....

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