2013 (9) TMI 863

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..... Per: Justice G. Raghuram: This is an assessee’s appeal preferred against the order dated 01.01.2013 of the Commissioner (Appeals), New Delhi. The appeal was rejected on the ground that it was filed with a delay of 1 year, 1 month and ten days; and that such abnormal delay cannot be condoned in exercise of the power and discretion of the Commissioner (Appeals) under Section 85(3) and the proviso .....

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..... t Commissioner, Service tax on 15.06.2012 and the appeal was presented on 22.08.2012. This statement in the memorandum of appeal is not disputed by Revenue i.e. that a copy of the adjudication order was received on 13.06.2012. 4. Para 5 of the order of the Commissioner (Appeals) however records that in order to verify the assessee’s contention regarding non receipt of the adjudication order, enqu .....

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..... ty notes that the adjudication order was despatched on 05.05.2011, and the appeal was filed on 15.06.2012, after a period of one year, one month and ten days. The statutory provision clearly enjoins that an aggrieved person is entitled to present an appeal within three months from the date of receipt of the decision/ order of an adjudicating authority. The conclusion by the appellate Commissioner .....

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..... sioner for computing the period of delay from the date of despatch is perverse, particularly since the ld. Commissioner had noticed the statutory provision under Section 85(3). 6. ld. DR Sh. Govind Dixit would endeavour to contend that provisions of General Clauses Act and certain decisions which go to show that a receipt of communication must be presumed on evidence of forwarding of a communicat .....

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..... e language used in the order itself. We are afraid that the appellate Commissioner’s silence cannot be supplemented by the ld. DR’s speech. 7. As the ld. Commissioner (Appeals) has erred in considering whether the assessee’s appeal is barred by limitation in terms of the statutory provisions, we quash appellate order and remit the appeal to the Commissioner (Appeals) for denovo determination. As .....

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