Tribunal overturns dismissal order for delayed appeal, emphasizing importance of proper service and fair review.

The Tribunal set aside the dismissal order due to delay in filing the appeal under Section 85(3A) of the Finance Act. The dispute over deemed service of the order was resolved in favor of the appellant, emphasizing the importance of adhering to prescribed modes for service of orders. The Commissioner's decision to dismiss the appeal was deemed unjustified, and the Tribunal directed a review of the appeal on its merits.

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Issues:
1. Appeal dismissal due to delay in filing within stipulated period under Section 85(3A) of the Finance Act.
2. Dispute regarding deemed service of order due to mode of delivery - speed post vs. registered post with acknowledgment due.

Issue 1: Appeal Dismissal for Filing Delay
The appeal sought to challenge the dismissal order by the Commissioner (Appeals) due to not being filed within the specified period under Section 85(3A) of the Finance Act. The Commissioner dismissed the appeal citing a delay of approximately 914 days, which was deemed not condonable based on a Supreme Court decision.

Issue 2: Dispute Over Deemed Service of Order
The dispute arose regarding the deemed service of the order as it was sent to the appellant via speed post instead of registered post with acknowledgment due, as prescribed under Section 37(C) of the Central Excise Act. The Commissioner presumed the order should have been delivered within 15-20 days based on a report, leading to the conclusion that the appeal was filed beyond the statutory limitation period.

The appellant argued that the order should be deemed served only if sent through the prescribed modes under the Central Excise Act. They relied on decisions from the Bombay High Court to support their stance, emphasizing the mandatory nature of serving orders by registered post with acknowledgment due.

The Tribunal found that the order was not sent through the prescribed modes, thus the deeming provision under Section 37(C) could not apply. Consequently, the Commissioner's inference that the order was served within 15-20 days was deemed incorrect. The appeal was filed within the stipulated period under Section 85(3A) of the Finance Act, and the Commissioner's decision to dismiss the appeal was considered unjustified.

In conclusion, the Tribunal set aside the dismissal order and directed the Commissioner to decide the appeal on its merits, highlighting the importance of adhering to prescribed modes for service of orders to ensure timely and valid communication in legal proceedings.

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