TMI Blog2021 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... e of communication. As per General Clauses Act, dispatched letter cannot be presumed to be delivered before 15 days of date of despatch. Secondly, despatching the order by speed post is not acceptable mode of service. Section 35F of Central Excise Act mandates that the appeal before Commissioner (Appeals) is to be filed within 60 days of receipt of the order by Original Adjudicating Authority. In addition, it mandates that the Commissioner (Appeals) can condone the delay on sufficient cause being shown but not beyond the period of 30 days from the expiry of said period of 60 days - Commissioner (Appeals) had no option to condone the delay which involves more than 90 days from the date of receipt of the order challenged before him. Seen f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-original passed thereafter is of 31.10.2017 i.e. after three years of directions of this Tribunal for rehearing the matter and the Order-in-Appeal as has been challenged in this appeal was also announced after more than two and a half years. First order-in-original was also announced after one year and six months of passing of show cause notice. This time period is impressed upon as the reason for not seeking the copy of Order-in-Original. Further, since the Order-in-Original was demanded by the appellant vide their letter dated 09.7.2019 and copy thereof was forwarded by the Department vide their letter dated 17.7.2019 which was ultimately received on 19.7.2019, the appeal preferred before Commissioner (Appeals) was very much within 60 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er one year and 6 months 3 Order-in- Appeal 17.3.2008 Order passed after one and a half years dismissing the appeal filed by the Department 4. FINAL ORDER NO. A/ 53558 /2014 15.09.2014 Order passed after more than 6 years remanding the matter to be reheard in the light of decision of Vandana Global vs. CCE Raipur [2010 (253) ELT 440 (TRI-LB)] 5. order in original at second round 31.10.2017 Order passed after three years of remand disallowing the Cenvat Credit and confirming the recovery of ₹ 15,62,562/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or agent sending it by registered post AD or by such other modes of service as are specified under section 37C of the Act. The order dismissing the appeal by accepting dispatch of order by speed post as valid service was set aside. 7. Tribunal Delhi also, in the case of Sunrise Corporation vs. Union of India Amritsar reported in [2012 (280) ELT 148] has held based upon the finding of Larger Bench of this Tribunal, in the case of Margra Industries vs. Commissioner of Customs, New Delhi reported in [2006 (202) ELT 244] that it cannot be presumed that the despatch of the order by speed post, in the absence of any proof of delivery results in communication of the order. There is no scope of presumption in taxing matters and deemed service p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of any dilatory tactics, deliberate inaction or negligence on part of the applicant. Also I am of the opinion that adjudication on merits shall not be prejudicial to the interest of either of parties to this alliance. 10. Coming to the facts of the present appeal, I observe that the appellant has sent a letter to the department on 9.7.2019 requesting for copy of the order-in-original dated 31.10.2017 informing that the same has not been received by the appellant. I also have perused the response of the department to this letter vide their letter dated 17.7.2019 providing the copy of said order ( Order in Original) to the appellant. The said letter is absolutely silent about the copy of Order-in-Original to have earlier been d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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