AI Drafter 
TaxTMI 
TaxTMI 
2026 (4) TMI 672
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....aster that Mobile No.9415544616 of the Counsel mentioned on vakalatnama is not reachable and Mobile No.7080996090 mentioned in the appeal memo when contacted is said to be a wrong number. Therefore, the contact is not possible from the party. In view of the above I do not see any reason for not proceeding in the matter when same is in very narrow compass. 2.2 I have heard Shri A.K. Choudhary, Authorized Representative appearing for the revenue. 3.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 3.2 I find that the appellant had filed appeal before Commissioner (Appeal) against order in original dated 16.02.2022 on 21.04.2023. Appellant contended that she had filed the before the Commissioner (Appeal), with some delay which could have been condoned by the said authority and matter considered on merits. 3.3 In the appeal memo filed by the appellant at S No 4 appellant has very categorically mentioned as follows: 4 Date of Communication of the order decision or order appealed against to the appellant 02.02.2023 Thus going by the appellants own averment with respect to the date of communication,....
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....ation from the Postal Department with respect to the actual service of the post upon the assessee after the expiry of a period of three months and by that time, the record was weeded out, the only evidence, which could have been produced by the Department, is the proof of the dispatch of the notice and not of not-receiving the said post bade by the Department. Against: this evidence of Department, there is only word of mouth of the assessee that he did not receive the notice under Section 143/[2) of the Act. In that fact situation, the Assessing Officer as well as the Tribunal were fully justified in accepting the contention of the Income Tax Department that notice was duly sent and since it was not returned back as undelivered, it was deemed to have been delivered to the assessee." In the light of the statutory provision as well as the judicial pronouncement, I am of the considered view that the impugned order is deemed to have been delivered to the appellant within time as the date of dispatch of the impugned order is 16.02.2022 which normally takes 2-3 days to deliver the letters. In order to examine genuineness of the claim of delay in receipt of the impugned order by ....
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....on." 3.6 Thus I find that Commissioner (Appeal) has not found much merits in the submissions made by the appellant to the effect that she has not received the order in original within a reasonable period of its dispatch on 16.02.2022. Going by that argument it is evident that appeal has been filed with delay of more than year, which could not have been condoned. I find that the issue involved in the present appeal is with respect of condonation of delay in filing the appeal by the Commissioner (Appeal). In the present case the appeal has been filed as observed by the Commissioner (Appeal) after more than a year after the receipt of the order of Original Authority. Section 85 (3A) of the Finance Act, 1994 provides as follows: "SECTION 85. Appeals to the Commissioner of Central Excise (Appeals).- (3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter : Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied th....
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....d manner." 7. It is to be noted that the periods "sixty days" and "thirty days" have been substituted for "within three months" and "three months" by Act 14 of 2001, with effect from 11-5-2001. 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 logic of Section 5 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can....
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....ter considering the past precedence Hon'ble Supreme Court has held as follows: 26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not....
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....regularities committed by its erring official (Mr. P. Sriram Murthy) in the month of July, 2018, which pre-supposes that the respondent must have become aware about the assessment order, at least in July, 2018. In the same affidavit, it is asserted that the respondent-company was not aware about the assessment order, as it was not brought to its notice by the employee concerned due to his negligence. The respondent in the writ petition has averred that the appeal was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days, when in fact, the order examines the cause set out by the respondent and concludes that the same was unsubstantiated by the respondent. That finding has not been examined by the High Court in the impugned judgment and order at all, but the High Court was more impressed by the fact that the respondent was in a position to offer some explanation about the discrepancies in respect of the volume of turnover and that the respondent had already deposited 12.5% of the additional amount in terms of the previous order passed by it. That reason can have no bearing on the justification for non-filing of the appeal within th....
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....ng adjournment of the hearing fixed on 25th May, 2010. Undoubtedly, assuming that the said letter was presented to the registry on 24th May, 2010, it discloses the ground that the advocate for the respondents was not well and unable to attend the personal hearing fixed on 25th May, 2010. At the same time, it is undisputed fact that it was to the knowledge of the respondents, though it might have been subsequently acquired, that when the matter came up for hearing on 25th May, 2010, the Tribunal was not apprised of any such letter having been sent by the respondents. In those circumstances, it was obviously expected from the respondents to enclose the copy of such letter along with the application disclosing necessary details about the presentation of such application in the registry on 24th May, 2010. It is not known as to why the same was not disclosed in the application and why the respondents had to wait till the date of today's hearing to contend that the proof thereof could be verified from the inward register by verifying whether the same was entered at Serial No. 186 on 24th May, 2010 or not. Be that as it may, the ground disclosed in the letter is that, the advocate for the....
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....served that "There is a clear non-application of mind and casual approach to the assessment". That is not the case in the matter in hand. Besides, the matter before the Tribunal was not at the original stage of assessment, whereas in S.K. Gupta's case (surpa) the matter was at the original stage of assessment before the Sales Tax Officer. Taking into consideration all those facts, the Delhi High Court has observed that, there was clear non-application of mind by the authority. It is settled law that a decision delivered in the peculiar set of facts cannot be applied to a situation which arises in a totally different set of facts. It is not mere absence of application before the Tribunal on 25th May, 2010 that led to the passing of the order. ..." 4.3 In the case of Shri Ram Steel Industries [2010 (258) E.L.T. 154 (Tri. - Del.)] Delhi Bench observed as follows: "17. After matters were heard and judgment was delivered in the open Court and while Excise appeal No. 2546 of 2009 was being heard, a letter was received in the open Court stated to have been sent by Shri O.P. Agarwal, Chartered Accountant for the respondents, which reads thus : "The personal hearings in....