TMI Blog2021 (10) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity of personal hearing to the appellant on 22.02.2017. However, it is mentioned on behalf of the appellant that there was no subsequent intimation to the appellant about the status of the adjudication post 22.02.2017. Accordingly, the appellant had to file a letter on 4.01.2019 requesting for the status thereof - all the submissions have been rejected by the Commissioner (Appeals) holding that there is no evidence on record to show that the appellant has not received the impugned order. This finding is not sustainable because evidence required by the learned Commissioner (Appeals) will be the evidence proving the negative fact. It is not permissible in the eyes of law. It is otherwise settled provision of law that burden was upon the dispatcher to prove that the documents/ orders / summons/ notice etc. was not merely dispatched but was duly received by the recipient. Apparently and admittedly, there is no such evidence on record which may prove the receipt of Order-in-Original to the appellant within the statutory period required for filing the appeal before the Commissioner (Appeals). Rather it is apparent that it was because of the appellants own efforts that the copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal on ground of limitation, it is submitted that infact the copy of order dated 19.04.2017 was received by the appellant on 03.07.2019 only as is apparent from the departments own letter dated 02.07.2019. It is submitted that though Original Adjudicating Authority have offered the opportunity of personal hearing on 27.02.2017 but no information about the adjudication order was however received by the appellant. It was on 04.01.2019 that letter was sent by the appellant to the Department asking for the status. Subsequently on 9.11.2019, the application under Right to Information Act was also filed. Copy of order was received on 03.07.2019 pursuant to said letter of appellant. To support the said receipt that the appellant filed the application under RTI on 09.11.2019. In response thereto, given by the department on 29.7.2020 acknowledging that copy of order-in-original was sent to the appellant vide letter dated 2.7.2019 received by the appellant on 3.7.2019. It is submitted that learned Commissioner (Appeals) has ignored the said relevant facts and the decision has been based on the presumption of the dispatch of order on 21.4.2017 itself. Order is accordingly, prayed to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ], 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, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. Perusal makes it clear that period of 60 days has to reckon from the date of the communication of decision / order to the person aggrieved of the such decision/ order. Mode of communication is prescribed under Section 37C of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vinod Choudhary cited supra have also categorically held that the Department has to prove the delivery of the orders and dispatch of the order is not sufficient for the purpose of calculating the period of limitation for filing the appeal before the Commissioner(Appeals). Further we find that the case laws relied upon by the Department have already been considered by the Larger Bench as per the decision of the Larger 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. Further Hon ble Apex Court in the case of Saral Wire Craft Pvt. Ltd. vs. Commissioner of Customs, Central Excise Service Tax reported in [2015-TIOL-154-SC-CX], it was held that it is the basic principal of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. As already recorded section 37C (a) it is clear that statute has provided a particular and precise mode of effecting service of orders/ decisions about the concerned parties, i.e. b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 of Central Excise Act. In view thereof, it stands crystal clear that the appeal was filed within the statutory period from the date of receipt of Order-in-Original. Commissioner (Appeals) has observed to have committed an error while calculating the period of limitation from the date of Order-in-Original. There is also failure observed on part of the Department for not dispatching the order-in-original properly through the prescribed mode till it was precisely demanded by the appellant. 12. Copy of the dispatch register that would have been produced by the Department, it was produced by the appellant. Perusal thereof also clearly show that register is silent about the dispatch and acknowledgment of receipt of order and is also silent about the status of post dispatch. In the given circumstances, the Commissioner (Appeals) need to count the limitation from the date when copy of Order-in-Original was made available to the appellant i.e. from 3.07.2019. Seen from that date, the appeal is well within the period of limitation. Hence, the order under challenge is held not sustainable, accordingly is set aside. However, keeping in view that order has not appreciated the merits of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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