TMI Blog2018 (8) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... Orders. There is nothing on record by the appellant to explain as to why he has failed to inquire about the outcome of his proceedings till October 2014, i.e. for subsequent 10 months thereof. There is no explanation to this delay of 15 days. Law of limitation is absolutely settled that delay even of single day has to be explained - the applicant is held to have not observed the due diligence. Even after receiving the recovery notice, he failed to be prompt. Above all, as per Section 85 of Finance Act, Commissioner (Appeals) had no discretion to condone the delay beyond a period of 3 months. There is no apparent cause and no reasonable explanation by the appellant for the observed delay rather his conduct is observed as inaction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his request to the said effect dated 29.10.2012. Seeing from that perspective, the Appeal was very much in time. The Order is accordingly, prayed to be set aside. Ld. Counsel has relied upon the decision of CESTAT, Mumbai in Hindustan Lever Ltd. vs. CCE, Chennai 2006 (194) ELT 352. It is impressed upon that since admittedly the Order-in-Original was served upon the appellant vide the original post same being not permissible under Section 37C of the Central Excise Act, 1944. Hence, the same cannot be considered. The Order dismissing the Appeal of the appellant on sole ground of limitation is prayed to be set aside. Appeal is therefore prayed to be allowed. 3. While rebutting, it is submitted by the Ld. DR that as per Section 85 of Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed the levy of the Show Cause Notice. 5. No doubt, the serving of notice vide original post is not the prescribed mode of service in view of Section 37C of CEA but the apparent fact remains is that the Order under challenge has been in furtherance of the Appeal of assesse itself who has been appearing throughout proceedings. He even marked his personal presence before the Commissioner(Appeals) on 25.02.2014 where after the matter was reserved for Orders. There is nothing on record by the appellant to explain as to why he has failed to inquire about the outcome of his proceedings till October 2014, i.e. for subsequent 10 months thereof. Though the appellant has taken the plea that he acquired knowledge about order under challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 163 (S.C.) has held that Appeal to Commissioner (Appeals) has to be filed within 60 days from date of communication of Order. Commissioner is empowered to condone delay of further period of 30 days only. Section 5 of Limitation Act, 1963 is not applicable by virtue of Section 35 of Central Excise Act, 1944. Keeping in view the same and that there is no apparent cause and no reasonable explanation by the appellant for the observed delay rather his conduct is observed as inaction and lack of due diligence since the stage of SCN itself, we find no infirmity in the order under challenge. Appeal is accordingly rejected. The authority relied upon by the appellant is held not applicable in view of the conduct as noticed above. [ Dictated and p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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