Proof of service controls limitation: absence of delivery evidence makes rejection as time-barred unsustainable and warrants merits review.

Service of the Order-in-Original was the ative issue in determining limitation for the appeal. The record showed dispatch, but the Revenue did not prove actual delivery or service on the appellant. Under Section 37C(1)(a) of the Central Excise Act, 1944, registered post or speed post service must be supported by proof of delivery, and service cannot be presumed merely because the article was not returned undelivered. The time-bar finding was therefore based on an unsustainable presumption, and the matter was required to be examined afresh on merits by the first appellate authority.

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Issues: Whether the appeal before the Commissioner (Appeals) could be rejected as time-barred in the absence of proof of delivery of the Order-in-Original, and whether the matter required remand for decision on merits.

Analysis: The appeal turned on service of the adjudication order. The record showed dispatch of the Order-in-Original, but the Revenue did not produce proof of actual delivery or service on the appellant. Under Section 37C(1)(a) of the Central Excise Act, 1944, service by registered post or speed post had to be evidenced by proof of delivery. In the absence of such proof, service could not be presumed merely because the postal article was not returned undelivered. The rejection of the appeal on limitation, therefore, rested on an unsustainable presumption. Since the limitation issue was incorrectly decided, the appeal on merits had to be examined afresh by the first appellate authority.

Conclusion: The rejection of the appeal as time-barred was set aside, and the matter was remanded to the Commissioner (Appeals) for disposal on merits without reopening the limitation question.

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