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TMI Blog2023 (1) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Act, 1944 [the Excise Act]. 2. It transpires from the record that an order was passed by the Assistant Commissioner in January, 2019 (we are specifically mentioning this fact because the order does not indicate the actual date and only states "Dated: .01.2019"), though the parties state that the order was passed on January 18, 2019. Against this order, which confirmed the demand of central excise duty with interest and penalty, an appeal was filed by the appellant before the Commissioner (Appeals) on May 27, 2019. In Form EA-1 against Serial No. 4, the appellant specifically stated that the date of communication of the order appealed against was March 27, 2019. 3. An appeal can be filed before the Commissioner (Appeals) under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unication of the order appealed against' it has been mentioned as "27.03.2019 (Certified copy as original copy not delivered)". Further on going through the contents of the appeal memo and documents attached with appeal memo, I do not find any evidence furnished by the appellant with regard to any correspondence with department regarding non receipt of the Order-in-Original or request for issuance of any certified copy of the order............. 7. The Assistant Commissioner, CGST Division-D, Bhiwadi was also requested to furnish evidence of factual position regarding issue and communication of the Order-in-Original in the instant case. In this regard, I find that the Assistant Commissioner, CGST Division-D, Bhiwadi vide his letter C.No. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1944, I hold that the appeal in the instant case is liable to be rejected on this itself." (emphasis supplied) 5. Shri M.P. Devnath, learned counsel for the appellant submitted that the Commissioner (Appeals) completely failed to appreciate the provisions of section 35(1) of the Excise Act and also the provisions of section 37C of the Excise Act. Elaborating this submission, learned counsel pointed out that section 35(1) of the Excise Act clearly provides that any person aggrieved by any decision or order passed under the Excise Act by a Central Excise Officer may appeal to the Commissioner (Appeals) within sixty days from the date of the communication of such decision or order and, therefore, what was actually required to be ascertaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral 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." 9. It would also be appropriate to reproduce section 37C of the Excise Act and the same is as under : "37C. Service of decisions, orders, summons, etc.- (1) Any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served,- (a) by tendering the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Commissioner regarding the date on which the order was served upon the appellant and in this connection the Office of the Assistant Commissioner informed the Commissioner (Appeals) that the order was despatched to the appellant on January 18, 2019 and in support thereof a copy of the relevant page of the despatched register was submitted. In our opinion, this was not relevant for the purpose of determination of the period of limitation contemplated under section 35(1) of the Excise Act. What was necessary to be ascertained by the Commissioner (Appeals) for the purpose of limitation under section 35(1) of the Excise Act was the date on which the order was actually served upon the appellant. What is also important to notice is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for in many earlier orders, it was also noticed that the adjudicating authority or the appellate authority had not indicated the date of the order. This is a fact which needs to be brought to the notice of the Adjudicating Officers so that in future the date on which the order is passed is specifically mentioned in the order. We would also like to mention here that for the purpose of determination of the limitation period, the Department relies upon the date of despatch of the order, whereas it should be the date on which such order were served, which is necessary. This date can be ascertained from the tracking report of Postal Department. The Department should, therefore, maintain the postal tracking report in each case for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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