TaxTMI 
TaxTMI 
2021 (10) TMI 486
X X X X Extracts X X X X
X X X X Extracts X X X X
....ules, 2004 read with Notification No. 27/2012 CE(NT) dated 18.06.2012. On 29.09.2016, the claim was filed with respect to the service provided by the appellant during the period October, 2015 to March, 2016. However, vide Show Cause No. 355 dated 11.01.2017, the refund claim was proposed to be rejected for want of any evidence being produced by the appellant showing compliance of proviso to sub-rule (2) of Rule 5 of CENVAT Credit Rules, 2004. Said proposal was accepted vide Order-in-Original No.13/2017-18 dated 19.4.2017. The appeal thereof has been rejected vide the aforesaid order under challenge however, on limited ground of limitation. Being aggrieved, appellant is before this Tribunal. 2. I have heard Shri S Thirumalai, learned Coun....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... order on 21.4.2017 itself. Order is accordingly, prayed to be set aside. 4. Learned Counsel has relied upon the following decisions: 1. Navrattan Jewellers vs. CC [2020-TIOL-929-CESTAT-Del)]; 2. Microsoft India R & D Pvt Ltd. [2020-TIOL- 1575-CESTAT-Bang]; 3. Prince International vs UOI [2015 (325) ELT 495(BOM)]; 4. Suresh Bagna vs COCE 2009 (234) ELT 606]; 5. Taranjit Singh Mohan Singh V Sawhney [2013 (10) SCC 402]; 6. M/s. Samsung India Electronics Pvt. Ltd. vs CCE NOIDA [2019 (11) TMI 1204]; 7. M/s. Schiller Healthcare India Pvt Ltd. vs ACC, Chennai [2021-TIOL-1357-HC-MAD-CUS]; 8. M/s. Duggar Fibre PVt Ltd. vs CCE&CGST, Delhi [2021 (6) TMI 952-CESTAT New Delhi]; ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nto Section 83 of Finance Act. It reads as follows: SECTION 35. Appeals to [Commissioner (Appeals)]. - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a [Principal Commissioner of Central Excise or Commissioner of Central Excise], may appeal to the [Commissioner of Central Excise (Appeals)] [hereafter in this Chapter referred to as the [Commissioner (Appeals)]] [within sixty days] from the date of the communication to him of such decision or order : [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mons or notice, as the case may be, is intended; (c ) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice." 7. The bare perusal of sub clause (a) above clarifies that decision/ orders/ summons/ notices have to be sent by registered post with acknowledgement due to the person for whom it is intended. Joint reading of above sections 35 and 37C makes it abundantly clear that it is date of receipt of dispatch in such modes as prescribed under section 37C, CEA which that is relevant for the reckoning the date period of limitation pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch of adjudication order by speed post and registered post would not amount to actual service in the absence of proof of delivery." 9. Further Hon'ble Apex Court in the case of Saral Wire Craft Pvt. Ltd. vs. Commissioner of Customs, Central Excise & Service Tax reported in [2015-TIOL-154-SC-CX], it was held that "it is the basic principal of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all." As already recorded section 37C (a) it is clear that statute has provided a particular and precise mode of effecting service of orders/ decisions about the concerned parties, i.e. by registered post, with acknowledgement due, it is the procedure, the way i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssioner (Appeals) will be the evidence proving the negative fact. It is not permissible in the eyes of law. It is otherwise settled provision of law that burden was upon the dispatcher to prove that the documents/ orders / summons/ notice etc. was not merely dispatched but was duly received by the recipient. Apparently and admittedly, there is no such evidence on record which may prove the receipt of Order-in-Original to the appellant within the statutory period required for filing the appeal before the Commissioner (Appeals). Rather it is apparent that it was because of the appellants own efforts that the copy of Order-in-Original could be received by the appellant on 03.07.2019. The appeal before Commissioner (Appeals) was filed on 29.08.....