Limitation for appeal starts from actual communication of the order when service by post is disputed and unproven.

Where service of an adjudication order is disputed, mere despatch by registered post does not by itself establish communication; the presumption of delivery remains rebuttable and must be supported by reliable proof of actual service. On the facts, the department could not produce the signed acknowledgement card or other convincing evidence of delivery before 17-3-2001, while the assessee consistently denied receipt and supported that stand by correspondence and affidavit. The appeal filed on 4-5-2001 was therefore within limitation under Section 35 of the Central Excise Act, 1944, so the appeal was not time-barred and the matter was remanded to the Commissioner (Appeals) for decision on merits.

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Issues: Whether the appeal before the Commissioner (Appeals) was barred by limitation, in view of the dispute as to when the order-in-original was communicated to the assessee.

Analysis: The assessee consistently asserted non-receipt of the order-in-original and supported that stand by correspondence and an affidavit stating that the order was not received until 17-3-2001. The department relied on despatch by registered post, but could not produce the signed acknowledgement card or other reliable proof of actual service. The presumption of delivery from postal despatch was treated as rebuttable, and the materials on record were insufficient to establish communication of the order before 17-3-2001. Since the appeal was filed on 4-5-2001, it fell within the limitation period under Section 35 of the Central Excise Act, 1944.

Conclusion: The appeal was not time-barred and could not be dismissed on limitation; the impugned order was set aside and the matter was remanded to the Commissioner (Appeals) for decision on merits.

Ratio Decidendi: Where service of an adjudication order is disputed, mere despatch by registered post does not conclusively prove communication; the presumption of delivery is rebuttable, and limitation for appeal runs only from actual communication of the order.

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