TMI Blog2016 (9) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... rd of the acknowledgement received, if any, or any other material for ascertaining the date on which the order was received by the appellant. When the appellant made statement on oath that it received the order only on 11.09.2012 to dislodge or for non-accepting the statement made, there should have been material on record for receipt of the order by the appellant on a particular date. If the material was not there, the second respondent could not proceed on the basis that the order despatched on 16.03.2012 ought to have been received within reasonable time. It is hardly required to be stated that when the statute provides express beginning of the limitation from the date of receipt of the order, unless the receipt is so verified and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case is that the appellant is an assessee proprietary firm engaged in the Event Management. As per the appellant, it is paying service tax and filing return. However, audit wing of the first respondent visited the premises and the record was collected from the appellant. Ultimately on 09.03. 2011 a show cause notice came to be issued calling upon the appellant to show cause as to why the service tax of ₹ 23,28,599/- for the period from April 2007 to March 2008 should not be demanded coupled with the interest and penalty. On 23.12.2011 the reply was filed. It appears that thereafter on 31.01.2012 the order was passed by the Assessing Officer, but the appellant did not receive the copy of the order, whereby the amount of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard Mr.E.I.Sanmathi, learned Counsel appearing for the appellant and Mr.K.V.Aravind, learned Counsel appearing for the respondents. 7. We may at the outset reproduce Section 85 of the Finance Act, which is applicable to the present matter. Section 85 of the Finance Act provides for appeal to the Commissioner of Central Excise (Appeals) which reads as under: Appeals to the Commissioner of Central Excise (Appeals). 85. [(1)Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the [Principal Commissioner of Central Excise or] Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).] (2) Every appeal shall be in the prescribed form and shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making order under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944). 8. The aforesaid shows that the limitation would begin from the date of receipt of decision of the order and the second aspect is that though normal period of limitation of three months to prefer appeal from the date of receipt of the order, there is power with the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to have condoned the delay and ought to have examined the appeal on merits. It also appears that the attention of the learned Single Judge about the proviso to Section 85(3) of the Finance Act, was not brought. Further the sub-section (2) providing for beginning of the limitation from the date of receipt of the order was also not brought to the notice of the learned Single Judge. Under these circumstances, we find that in absence of any material considered the date from which the limitation period ought to have been taken, it was a fit case to condone the delay and to examine the matter on merits. 10. In view of the aforesaid, the impugned order passed by the learned Single Judge as well as by the second respondent dated 25.11.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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