2021 (12) TMI 616 - AT - Central Excise

Appeal allowed for timely filing; lack of proof of service overlooked, remanded for fair reconsideration.

The appeal was allowed as the Member (Judicial) found that the appellant filed the appeal within the permissible time frame after receiving the ... Maintainability of appeal - proof of service of adjudication order delivered or not - HELD THAT:- To file appeal before the Commissioner (Appeals), the adjudication order is required to be delivered to the assessee and on receipt of the adjudication order, the assessee has to file appeal within 60 days of receipt of said order, the said period can be extended for another 30 days if the reasons explained by the assessee are found satisfactory. Admittedly, in this case, there is no proof of service of adjudication order on the appellant. In that circumstance, the date on which the appellant has received the adjudication order is the date of receipt of adjudication order i.e. 10.12.2020 and thereafter they filed appeal before the Commissioner (Appeals) on 15.2.2021. In that circumstance, the appellant has filed appeal before the Commissioner (Appeals) in time, the impugned order deserves no merit and accordingly the same is set aside. The Commissioner (Appeals) has not dealt with merits of the case, therefore, the matter is remanded back to the Commissioner (Appeals) to decide the issue on merits within 60 days of receipt of this order after affording a reasonable opportunity of hearing to the appellant - Appeal allowed by way of remand. Issues: Appeal against dismissal of appeal as time barred.Analysis:1. The appellant appealed against an order dismissing their appeal as time-barred, claiming they did not receive the adjudication order until 2019, despite recovery notices being sent in 2017. The Commissioner (Appeals) upheld the dismissal.2. The appellant argued that they only received the adjudication order in 2019, requested a copy from the department, and filed the appeal upon receipt. The Authorized Representative contended that recovery notices were sent in 2017, and the appellant failed to respond, justifying the time-barred dismissal.3. The Member (Judicial) noted that for filing an appeal, the adjudication order must be delivered to the assessee, who then has 60 days to appeal, extendable by 30 days with valid reasons. As there was no proof of service, the date of receipt was considered as 10.12.2020, and the appeal filed on 15.2.2021 was deemed timely. The impugned order was set aside.4. Additionally, the Commissioner (Appeals) did not address the case's merits. Therefore, the matter was remanded for reconsideration within 60 days of the order, granting the appellant a fair hearing. The appeal was disposed of through remand, ensuring a thorough review of the case on its merits.