TMI Blog2020 (10) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... tment has not been able to establish by any cogent evidence that the Order-in-Original was actually delivered to the appellant. Further we find that the appellant was not aware of the issuance of the Order-in-Original dt. 29/02/2012 and they wrote 3 follow-up letters dt. 11/07/2012, 21/08/2012 and 17/10/2012 enquiring about the status of the adjudication. These letters, in spite of the fact that they were received by the Department, were not responded to at all by the Department and the Department did not inform the appellant regarding the status of their adjudication. Not only this, the appellant has also filed a RTI application before the CBEC but the same has not yielded any result. The High Court of Rajasthan in the case of M/S RP CA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted during the period October 2009 to March 2010 under Rule 5 of CENVAT Credit rules, 2004 (CCR, 2004 for short) read with Notification No.5/2006-CE(NT) dt. 14/03/2006 as amended from time to time. Appellant was issued a show-cause notice dt. 11/11/2010 seeking to reject the refund claim filed by it under Rule 5 of CCR. After following the due process, the Assistant Commissioner vide Order-in-Original dt. 29/02/2012 issued on 09/03/2012 rejected the refund claim filed by the appellant. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) and the Commissioner(Appeals) rejected the same on the ground that it is barred by limitation. 3. Heard both sides and perused the records. 4. Learned counsel appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the respondent or considered by the learned Commissioner(Appeals) and such assumptions are invalid in law. Learned counsel further submitted that the respondent never replied to several follow up letters dt. 11/07/2012, 21/08/2012 and 17/10/2012 written by the appellant enquiring about the status of the adjudication. But the Department did not give any reply to any of the letters written by the appellant. Learned counsel further submitted that under Section 37C of the Central Excise Act, 1944 read with Finance Act, 1994, it is stated that order is deemed to be served on the appellant when it is delivered by the post and in the present case, in the absence of proof of such delivery, the Department cannot claim to have delivered the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C judgment dt. 02/11/2004 in Appeal (crl.) 887 of 1999. 6. We have considered the submissions made by both parties. Before we proceed to examine the question involved in this case, it would be apposite to take note of the relevant provisions of Section 37C of Central Excise Act, 1944 as applicable at the relevant time and the same is reproduced herein below:- Section 37C. Service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notices 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 by speed post with proof of delivery or by courier approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the appeal is within time or not. Further we find that as per the respondent, the Order-in-Original dt. 29/02/2012 was issued on 09/03/2012 and the appellant has filed the appeal before the Commissioner on 05/02/2013 which is beyond the period as prescribed in Section 85(3A) of the Finance Act, 1994. We further find that the Department has not been able to establish by any cogent evidence that the Order-in-Original was actually delivered to the appellant. Further we find that the appellant was not aware of the issuance of the Order-in-Original dt. 29/02/2012 and they wrote 3 follow-up letters dt. 11/07/2012, 21/08/2012 and 17/10/2012 enquiring about the status of the adjudication. These letters, in spite of the fact that they were receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench and after considering all those decisions, the Larger Bench has come to the conclusion that dispatch of adjudication order by speed post and registered post would not amount to actual service in the absence of proof of delivery. 9. In view of our discussion above, we are of the considered view that the impugned order is not sustainable in law. We set aside the impugned order and hold that the appeal of the appellant is within time from the date of receipt of Order-in-Original. The appeal is allowed and the case is remanded to the Commissioner(Appeals). The learned Commissioner(Appeals) is directed to decide the appeal on merits after following the principles of natural justice and after affording reasonable opportunity of hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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