9911796707
TMI Blog2021 (9) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act 1994 [the Finance Act] to assail the order dated January 23, 2009 passed by the Additional Commissioner has been dismissed for the reason that it was filed beyond the period of limitation stipulated in sub-section (3) of section 85 of the Finance Act. 2. It will be useful to reproduce paragraph 9 of the order of the Commissioner (Appeals) and it is as follows: "The authorised Advocate, on behalf of the appellant, vide letter dated 3.11.2015 has submitted copies of letters dated 10.2.2009 of the Supdt. STax (Adj) addressed to AC, STax Dn. IV intimating about the return of the undelivered order by the postal authorities as unclaimed, and their letter dated 4.7.2017 requesting for a certified copy of the adjudication orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the communication dated February 10, 2009 sent by the Superintendent (Adjudication) to the Assistant Commissioner of the Service Tax that the order must have been served upon the appellant in 2009 itself merely because there was a direction to serve a copy of the order upon the appellant. Learned counsel submitted that there is no evidence on the record which may even remotely indicate that the order was actually served upon the appellant prior to July 05, 2011. 5. Shri S.K. Hatangadi, learned Authorized Representative appearing for the Department has supported the impugned order and has placed reliance upon a decision of the Supreme Court in Singh Enterprises vs. CCE, Jamshedpur [2008 (211) E.L.T. 163 (S.C.)]. Learned Authorized Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxxx xxxxx xxxxx. (5) xxxxx xxxxx xxxxx" 8. The case of the appellant is that it is only when the recovery cell of the Department informed the appellant about the demand of service tax with penalty and interest pursuant to the order passed by the Additional Commissioner, that the appellant for the first time acquired knowledge of the order and the appellant immediately thereafter sent a letter dated May 14, 2011 to the Adjudication Cell of the Department for providing an attested copy of the order to the appellant to enable it to either pay the dues or take such appropriate action as may be considered necessary. This letter was followed by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st have been complied with and the order must have been served upon the appellant in 2009 itself. The Commissioner (Appeals), in view of the provisions of the section 85(3) of the Finance Act, therefore, dismissed the appeal since the appeal was not filed even within the further period of three months after the expiry of the initial period of three months and the Commissioner (Appeals) had no power to condone the delay in filing the appeal after the expiry of the further period of three months. 11. It is for this reason that the learned Counsel appearing for the appellant submitted that only a presumption has been drawn by the Commissioner (Appeals) that the order was served upon the appellant in 2009 itself. 12. Learned Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of the order. The order was received by the appellant only on July 05, 2021. The Commissioner (Appeals) has drawn a presumption that the order was served upon the appellant in 2009 itself, because of the communication dated February 10, 2009 of the Superintendent (Adjudication) requesting the Assistant Commissioner to deliver the order upon the Appellant. There was nothing on the record before the Commissioner (Appeals) to come to a definite conclusion that the order was served upon the Appellant in 2009. The order also does not mention that the Assistant Commissioner of the Superintendent (Adjudication) had any acknowledgment about receipt of the order by the appellant. A statutory right of presenting an appeal within a specified tim ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
