TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 647
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....s liable to be dismissed on the grounds of limitation as the delay exceeding the statutory time limit cannot be condoned by his office. In the above findings, the learned Commissioner (Appeals) has found out that copies of the refund orders passed by the Assistant/Deputy Commissioner were received by the appellant on 13.06.2011, though the party claims receipt date as 15.062011. However, on confirmation from the field unit, it is revealed that the impugned orders were received by the authorised person of the appellant on 13.06.2011. The Jurisdictional Assistant Commissioner (JAC) has submitted copies of the dated acknowledgements of authorized person of the appellant in respect of the impugned orders vide his letter F. No. V/18-17/ST/Div/06-07/Ref. dated 03.01.2012. As per Section 85(3) of the Finance Act, 1994, the appeal was to be presented within 3 months from the date of receipt of the orders i.e. up to 13.09.2011 whereas appellant filed the appeals on 15.12.2011 along with application for condonation of delay. On plain reading of the said provisions, the appeal should have been filed on or before 13.12.2011 so as to avail the benefit of extended period of 3 months but the appe....
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....he Assistant Commissioner has adduced any evidence about the authorized person of the appellant having visited his office and collected three orders for his claim about the date of receipt of OIO as 13.06.2011 nor the JAC has submitted dated acknowledgments with the said letter dated 03.01.2012. Thus, the above stated findings of the learned Commissioner (Appeals) are totally unfounded and contrary to facts viz. documentary evidences available before him. 2.4 In addition, it was submitted that as per provisions of Section 9 read with Section 3(35) of the General Clauses Act, 1897 and Section 85(3) of the Finance Act, 1994 for the purpose of time limit of three months from the date of receipt of the decision or order and further period of three months, first in series of days is to be excluded and month means calendar month only. So as per said provisions of Section 9 ibid, 3 months period starts from 16.06.2011 and completes on 15.09.2011 and further period of three months is from 16.09.2011 to 15.12.2011. In absence of exact date of receipt of OIO on the said letters, the date of receipts has to be considered as 15.06.2011 and not 13.06.2011. Therefore, appeals were filed w....
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....34 of the Act on merits, in accordance with law." 2.6 Appellant further submitted that it has taken over the company by the order of Hon'ble NCLT under the Insolvency and Bankruptcy Code, 2016 and majority of the staffs/employees of earlier management have left the company. However, new management has tried its best to check from the old employees who were dealing with Service Tax Related work/matters about the person who had collected those 3 letters dated 13.06.2011 by putting his signature and date but nobody is able to recollect being old matter for more than 13 years. So in this peculiar facts and circumstances of the case, appellant is not in a position to submit any affidavit of the concern person who had acknowledged the said 3 letters dated 13.06.2011. 2.7 Therefore, it was prayed that in the facts and circumstances of the present case in absence of any specific date of acknowledgement on the said three letters, date of receipt of the Orders-in-Original / Refund Orders may be considered as 15.06.2011 based on the remarks put on the body of the said order (s) by the ex-employee/concern person of the appellant. Appellant further submitted that learned Commissioner (Appeals....
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....uted from 14.09.2011 to 13.12.2011. As the appeal was filed on 15.12.2011 which is beyond the time period as per Section 85(3) the Commissioner (Appeals) has rightly rejected the appeal on grounds ofon limitation. 3.4 Learned AR relied upon the following decisions to buttress his position:- * Final Order No. A/2333/WZB/AHD/09 dated 11.11.2009 * SOFT HOSIERY MILLS VS CCE, TRICHY-2012 (26) S.T.R. 67 (Mad.) * RAJA MECHANICAL CO. (P) LTD. VS CCE, DELHI-I-2012 (279) E.L.T. 481 (S.C.) * VIJAY BABURAO PETKAR VS CST, AHMEDABAD-2007 (210) E.L.T. 59 (Tri. - Mumbai) * SIDDRAMAPPA S. YALAMALLI vs CCE BELGAUM-2011 (22) S.T.R. 658 (Tri. - Bang.) * 2010 (17) S.T.R. 442 (Tri. - Bang.) KOUNI TRAVELS PVT. LTD. VS CST, BANGALORE 3.5 Learned AR also submitted that the appeal period available is not a continuous duration of six months. The further period of three months as per proviso to sub-section (3) of Section 85 has to be computed after expiry of first three months available to a person in terms of this Section. This computation will be governed by Section 9 of the General Clauses Act. He referred to para 7 of the decision in the case of KOUNI TRAVELS PVT LTD, cited supra. The releva....