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TMI Blog2019 (7) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-in-Appeal No.551(SM) CE/JPR/2017 dated 1 December, 2017 on the grounds of limitation only, without going into the merits of the CASE of the appellant. 2. The appellant have contended that Order-in-Original dated 26 July, 2016 was not received by them and they came to know about the Order in Original only when the Departmental Officers approached the appellant for the recovery of the confirmed dues of Central Excise. The appellant, thereafter have made an application under RTI for supply of copy of the Order-in-Original dated 26 July, 2016. The Department has supplied the copy of the Order-in-Original vide their letter dated 24 July, 2017 and the appellant have filed an appeal before the Commissioner (Appeals) as per the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 any decision or order which is passed under the Central Excise Act shall be served by tendering the decision or by sending it by registered post with the acknowledgment due. It has been contended by the appellant that though the Department may have sent the Order-in-Original dated 26.07.2016 by registered post, but the same was not delivered to the appellant and the Department has failed to produce any evidence of receipt of such order by the appellant. It has also been contended that it is only after the recovery proceedings were initiated by the Department that the appellant came to know of such Order-in-Original. Immediately, they made necessary efforts to get a copy of the impugned Order-in-Original by applying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r actual service of the Order-in-Original to the appellant in the form of acknowledgement of registered post. 5. We have also heard ld. Departmental Representative who has supported the Order-in-Appeal and has also given a copy of an order of Madhya Pradesh High Court, in case of Indore Municipal Corporation vs. Commissioner of Central Excise (Appeal), Indore (M.P.) reported in 2016 (338) ELT 567 (M.P.) as well as a citation in the case of M/s. Jay Balaji Jyoti Steels Ltd. vs. CESTAT, Kolkata reported in 2015 (37) STR 673 (Ori.). The ld. Departmental Representative has held that ordinarily it cannot be presumed that a communication sent by speed post has not been received by the addressee and burden lies with the addressee to prove that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-Original only when the recovery proceedings were started against it and immediately it made an effort to get the copy of the Order-in-Original dated 26.07.2016 and thereafter the appeal had been filed in time before Commissioner (Appeals). 8. We do not agree with the findings of the ld. Commissioner (Appeals) that the date of the service of the order as per the law is the date of sending of the same by registered post. We feel that this finding of the ld. Commissioner (Appeals) is contrary to the provisions of Section 35 C of the Central Excise Act, 1944, which provides that any order or decision sent by registered post has to be with acknowledgement due. The requirement of the "acknowledgement due" ensures that the decision or order whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served, - (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due (or any speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 (54 of 1963), to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, Jodhpur [2016 (336) E.L.T. 388 (Raj.)].
11. In view of above, we find substance in the appeal and, accordingly, impugned order dated 3-10-2008 passed by the appellate Tribunal is set aside and the delay in filing the appeal is condoned for the reasons given above. The matter is remanded back to the Appellate Tribunal for its decision on merit."
9. Thus, in view of above, we set aside the Order-in-Appeal and allow the appeal with a direction to the Commissioner (Appeals) that the appeal of the appellant before the Commissioner (Appeals) should be restored to its original number and same should be heard and decided on merits.
10. As a result, appeal is allowed by way of remand.
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