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TMI Blog2022 (3) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2013-2014 and 2014-15, but has not paid the Service Tax on consideration of said taxable service received. Accordingly the demand on the allegation of short payment was issued proposing to recovery of short duty from the appellant along with the interest and the imposition of proportionate penalty was also proposed vide Show cause notice No. 6191 dated 18.10.2018. The said proposal was confirmed by Order-in-Original No. 259 dated 16.10.2019. The appeal thereof has been rejected vide Order-in-Appeal No. 236 dated 12.7.2021 on the ground of it being barred by period of limitation. Being aggrieved the appellant is before this Tribunal. 2. I have heard Shri Ankit Totuka, learned Counsel for the appellant and Shri Mahesh Bhardwaj, learned Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the appellant. The recovery notice was served on both the address i.e. the one as, was mentioned in the show cause notice as well as another as mentioned in the registration certificate. Accordingly the demand notice got received by the appellant. It is prayed that the date of receipt of demand notice i.e. 27.8.2020, may be considered as date of receipt of knowledge about Order-in-Original. Learned Counsel has mentioned that the appeal in the given circumstances is well within time but still has been rejected. The order is, therefore prayed to be set aside and the appeal in hand is prayed to be allowed. 4. To rebut the submissions, the learned Departmental Representative has laid emphasis on para 5.1 of the order under challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddress. 6. The certified copies of the show cause notice as well as Order-in-Original which was passed ex-partie were received by the appellant on 25.9.2020. 6. The relevant provisions to further arrive on the conclusion section 84 (sub section 2) of Finance Act reads as follows: SECTION 84. Appeals to Commissioner of Central Excise (Appeals).- (1) .... (2) Every order under sub-section (1) shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority. Perusal thereof makes it clear that the time period available with the assessee to file the appeal before Commissioner (Appeals) against the Order-in-Original is the period of three months from the date when he re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waiting, for a reasonable period for the respondents to his letter dated 4.9.2020. In view of the decision as above by the Hon'ble Apex court and also in view of the decision of this Tribunal in Almelo Laboratories Pvt. Ltd. v. Collector -1989 (41) E.L.T. 319 (Tribunal) I hold that the appellant was never served with the show cause notice and Order-in-Original. The Order-in-Original is passed exparte. I also draw my support from another decision of this Tribunal in the case of Ram Nivas Singh Contractor Vs. Commr. Of C. Ex. & S.T., Allahabad reported as [2019 (24) G.S.TL. 451 (Tri- All.)] has also been relied upon wherein the service of the show cause notice was by affixing the same on the premises but it was not considered and notice was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the adjudicating authorities below. It is documented on record that copy of order under challenge as before Commissioner (Appeals) was received by the appellant on 25.9.2020. The department has not produced any evidence about service of Order-in-Original on appellant on any date prior to the aforesaid date of receipt of said order. Order of Commissioner (Appeals) is miserably silent about the receipt of certified copy of Order under challenge before him on 25.9.2020. Had the said fact being considered by Commissioner (Appeals), he could have rightly appreciated the appeal to have been filed within the statutory period for the same. The absence thereof is sufficient violation of aforesaid principles of nature justice. Therefore, the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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