TMI Blog2023 (11) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... ant namely Shri Prateek Rao. He admittedly is the employee of appellant as service supervisor - it is opined that issuance of copy of order by speed post does not amount to service thereof as such. Because it will be mere dispatch of the order. As per section 85 of Finance Act, 1994, period two months for filing appeal before the Commissioner (Appeals) has to reckon not from the date of Order-in-Original but from the date of receipt of the said order by the assessee. No doubt in section 37C, speed post is the mode of service but proof of dispatch is still mandatory. In the absence of proof of receipt of the O-I-O to the appellant sent by speed post, the same cannot be held to have been served. With respect to second mode of service, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged to have not declared and discharged service tax towards income from various types of commission and some other taxable heads viz. logistic charges, incentives as mentioned in the show cause notice F.No.V(ST)15-40/Landmark/AC/Adj/2019-20/3435 dated 17.10.2019. Vide which an amount of Rs. 48,13,020/- was proposed to be recovered from the appellant towards service tax liability alongwith interest at appropriate rate. Such proposal was confirmed vide Order-in-Original as mentioned above. Appeal against the said order has been rejected on the ground of limitation being filed much after a period of 60 +30 days from the date of receipt of the Order-in-Original dated 30.7.2020. Being aggrieved, the appellant is before this Tribunal. 3. Hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is also not in compliance of section 37C of Central Excise Act, 1944. With these submissions, the order of Commissioner (Appeals) is prayed to be set aside and the appeal is prayed to be allowed. 7. Ld.DR while rebutting the submissions has mentioned that notice was duly served on the appellant and was received by the employee of the appellant. Such receipt has been relied upon the Commissioner (Appeals). Thus there is no infirmity in the order wherein the period of limitation has been calculated with effect from 30.7.2020 when said employee received the copy of Order-in-Original. Ld.DR impressed upon that the findings of order under challenge wherein the Commissioner (Appeals) held that as per section 37C there is proof of service o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit of Shri Prateek Rao, wherein he deposed that he received notice but he failed to bring it to the notice of the appellant. The contents of said affidavit are fully corroborated by partner of the appellant, Shri Abbas Ali Ghasswala. It gets clear from the affidavits that the Order-in-Original could never be brought to the notice of the appellant. It is only from the recovery notice dated 23.2.2023, the appellant acquired knowledge about the Order-in-Original dated 30.7.2020. On the very next day, appellant applied for the copy of the said order and not in later than 10 days of getting the copy of the impugned order, appeal has been filed. 10. In totality of the circumstance, I am of the opinion that the present appeal shall not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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