TaxTMI 
TaxTMI 
2021 (9) TMI 755
X X X X Extracts X X X X
X X X X Extracts X X X X
....Advocate, on behalf of the appellant, vide letter dated 3.11.2015 has submitted copies of letters dated 10.2.2009 of the Supdt. STax (Adj) addressed to AC, STax Dn. IV intimating about the return of the undelivered order by the postal authorities as unclaimed, and their letter dated 4.7.2017 requesting for a certified copy of the adjudication order, to support their contention. However, it is observed from para 2 of the letter dated 10.2.2009 of Supdt.(Adj) addressed to AC, Service Tax, Dn.IV, that he has also made a request to deliver the impugned OIO upon MTPL, which must have been complied with and order served upon MTPL accordingly in 2009 itself. Hence, the plea of the appellant that the order was served upon them only on 04.07.2011 is not acceptable." (emphasis supplied) 3. This letter dated February 10, 2009 referred to in the aforesaid order of the Commissioner (Appeals) is reproduced below: " The order-in-original mentioned in the subject matter was sent to the Noticees by Speed post A.D on the address available on records. However, the same has been returned undelivered by the postal authorities with a remark "uncla....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rm and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority, relating to service tax, interest or penalty under this Chapter: PROVIDED that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. (4) xxxxx xxxxx xxxxx. (5) xxxxx xxxxx xxxxx" 8. The case of the appellant is that it is only when the recovery cell of the Department informed the appellant about the demand of service tax with penalty and interest pursuant to the order passed by the Additional Commissioner, that the appellant for the first time acquired knowledge of the order and the appellant immediately thereafter sent a letter dated May 14, 2011 to the Adjudication Cell of the Department for providing an attested copy of the order to the appellant to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tive of the Department has, however, placed reliance on the judgment of the Supreme Court in Singh Enterprises. 13. The Supreme Court in Singh Enteprises examined the provisions of section 35 of the Central Excise Act, 1944, which are pari materia to the provisions of section 85 of the Finance Act, and observed that the delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only upto 30 days after expiry of 60 days, which is the normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and the High Court were justified in holding that there was no power to condone the delay after the expiry of the further period of 30 days. Paragraphs 8, 9 and 10 of the judgment are reproduced below: "8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s that even the initial period of three months provided for in sub-section (3) of section 85 of the Finance Act for presenting an appeal begins to run from the date of receipt of the order. The order was received by the appellant only on July 05, 2021. The Commissioner (Appeals) has drawn a presumption that the order was served upon the appellant in 2009 itself, because of the communication dated February 10, 2009 of the Superintendent (Adjudication) requesting the Assistant Commissioner to deliver the order upon the Appellant. There was nothing on the record before the Commissioner (Appeals) to come to a definite conclusion that the order was served upon the Appellant in 2009. The order also does not mention that the Assistant Commissioner of the Superintendent (Adjudication) had any acknowledgment about receipt of the order by the appellant. A statutory right of presenting an appeal within a specified time can be defeated only by cogent evidence about service of the order and such a right cannot be defeated by drawing a presumption about service of order. The Commissioner (Appeals), therefore, committed an error as a result of which the appellant has been deprived of his right to....