TMI Blog2016 (11) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) should have given an opportunity to the appellant to remove the defect. Appeal allowed - demand not justified - matter remanded. - Central Excise Appeal No. 1 of 2016 - - - Dated:- 20-5-2016 - MR. AJIT SINGH AND SUMAN SHYAM JJ Shri R.K. Mour, R. Dubey and Ms. A.B. Kayastha Advocates for the Petitoner. ORDER Mr. R. Dubey, learned counsel, for the appellant and Mr. S. C. Keyal, learned Assistant Solicitor General of India. This appeal under Section 35G of the Central Excise Act, 1944, is directed against the order, dated 23.03.2015, passed by the Customs, Excise Service Tax Appellate Tribunal, Kolkata, in Appeal No.ST 71437/2013 whereby it has affirmed order dated 08.10.2013 passed by the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had filed the appeal under Section 85 of the Act before the Commissioner (Appeals) within the prescribed period of limitation. 4. The relevant extract of Section 85 of the Act reads as under: 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 5[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 be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of [such adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f by the respondent that order of the adjudicating authority sent by registered post was really received by the appellant, it can safely be presumed that for some reason or the other, the appellant did not receive the same. As seen above, the appellant received the certified copy of order on 28.02.2011 and filed the appeal on 27.05.2011, i.e., within the period of three months. Section 85 clearly provides that appeal can be presented within three months from the date of receipt of the decision or order of the adjudicating authority. The Commissioner (Appeals), therefore, apparently committed an illegality in calculating the period of three months from the date of dispatch of order instead of from the date of its receipt by the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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