TMI Blog2021 (9) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... d Representative appearing for the Department on the decision of the Supreme Court in Singh Enterprises is misplaced. It is no doubt true that the Supreme Court held that an appeal has to be filed within the period prescribed in the Act and the provisions of section 5 of the Limitation Act cannot be availed of, but the period of three months has to commence from the date a copy of the order is actually served upon the appellant and in the instant case the order was actually served upon the appellant only on July 05, 2011 - the appeal presented by the appellant on August 05, 2011 was within the initial period of three months prescribed in sub-section (3) of the section 85 of the Finance Act. The order dated November 26, 2015 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside - Appeal allowed. - SERVICE TAX APPEAL NO. 85374 OF 2016 - FINAL ORDER NO. A/86741 / 2021 - Dated:- 30-8-2021 - MR. JUSTICE DILIP GUPTA, PRESIDENT AND MR. P.ANJANI KUMAR, MEMBER (TECHNICAL) Shri Vipin Jain, Advocate for the Appellant Shri S.K. Hatangadi, Authorized Representative for the Respondent ORDER This appeal has been filed to assail the order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an error in drawing an inference from 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 Representative has also submitted that once the amalgamation proceedings of the two companies was ordered on January 11, 2008 and the matter was still pending before the Additional Commissioner at that point of time, the appellant should have appeared before the Additional Commissioner to pursue the matter, but it did not. 6. The submissions advanced by the learned Counsel for the appellant and the learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentions that the order-in-original was sent to the appellant by speed post with acknowledgment due on the address available on the record, but the same had returned by the postal authorities undelivered with the remark unclaimed . The Superintendent also made a request to the Assistant Commissioner to arrange delivery of the original order upon the appellant and a copy of the order was also enclosed. The Assistant Commissioner was also requested to obtain an acknowledgment from the appellant about the receipt of the letter and then forward it to the Superintendent for keeping it on the record. 10. The Commissioner (Appeals), in paragraph 9 of the order has drawn a presumption from the aforesaid letter dated February 10, 2009 that since a request had been made to serve a copy of the letter upon the appellant, it must 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. (emphasis supplied) 14. Section 35 of the Central Excise Act 1944 which was considered by the Supreme Court in Singh Enterprises, is reproduced below: 35. Appeals to Commissioner (Appeals) . - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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