2026 (1) TMI 1678

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....ided the appeal on merits but dismissed the same on the ground of limitation. 3. The Order-in-Original dated 19.09.2023 was issued on 20.09.2023. However, again there is noting on the Order-in-Original vis-a-vis "Get it Served". This noting is dated 10.10.2023. It is the submission of the learned Advocate appearing on behalf of the Appellant that there was a phone call sometime in the month of October, 2024 to the Appellant assessee directing them to visit the office of the Assistant Commissioner CGST, Division-VI Noida to collect the Order-in-Original dated 19.09.2023. After receiving the phone call, the Appellant assessee visited the office and collected the Order-in-Original on 21.10.2024. The appeal was filed before the first Appella....

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....under Section 35 of the Central Excise Act, 1944 or not. The period of limitation provided under the said Section 35 is „sixty days from the date of communication of decision or order‟. On one hand the Appellant claims that the Order-in-Original dated 19.09.2023 was communicated to him for the very first time only on 21.10.2024 when the copy of the said order was made available to him whereas on the other hand the impugned order records that the said order was dispatched by Speed Post vide letter dated 20.03.2023. 5. Since the impugned order records that the order dated 19.09.2023 was dispatched by Speed Post, hence it is necessary to refer to Section 37C of the Act, relevant part of which is reproduced here:- "SECTI....

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.... manner provided in subsection (1).]" On perusal of the above provision, it seems that it is only when the order, decision, summons, notice or any other communication is sent by a Registered Post or Speed Post or courier with acknowledgement due, it shall be deemed to have been received by the addressee, unless the contrary is proved. Thus, the initial burden to demonstrate that the order was by Speed Post with acknowledgement due is on the revenue. It is only when this initial burden is discharged by the revenue, only then the onus shifts to the addressee to prove to the contrary. 6. I find that the Tribunal and the superior courts have consistently held that since all the notices, decisions, orders, summons etc. should be in complia....

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....e statute and therefore, should have insisted on an acknowledgement either by the appellant or by its authorized agent. The Inspector had a statutory function to fulfil, not a mere perfunctory one. The appeals are accordingly allowed and the impugned orders are set aside. In the facts obtaining before us, the computation of the period would commence at least from the date on which the appellant asserts knowledge of its existence, i.e., on 26-7-2012. So computed, the appeal filed before the Commissioner (Appeals) on 22-8-2012 would be within the prescribed period of 60 days and should, therefore, have been entertained on merits. It is ordered accordingly. The appellant shall appear before the Commissioner (Appeals) on the forenoon of 3-8-201....