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TMI Blog2017 (2) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of the receipt of the decision or order. The petitioner contends that the order was received only on 07.01.2013. If that is so, the appeal will be within time. The order was admittedly sent by RPAD. It is reasonable to presume that the same would not have been received by the assessee on the same date - It is reasonable to presume that in the ordinary course of post, a letter sent RPAD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the period of limitation. In CEA No.41 of 2016, the appellant s appeal was also dismissed on the ground that it ought to have been filed under the Finance Act, 1994 and not under the Central Excise Act. The first question of law that arises is whether the Tribunal rightly dismissed the appeals on the ground of limitation? As far as CEA No.40 of 2016 is concerned, the Tribunal held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have at least asked the Department to produce the RPAD receipt. The Tribunal should not have considered 4th January to be the starting date for the period of limitation. A presumption can also be drawn under Section 27 of the General Clauses Act, 1897 which reads as under:- 27 Meaning of service by post. Where any [Central Act] or Regulation made after the commencement of this Act authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant. The appeal shall now be heard by the Commissioner (Appeals) on merits. As far as CEA No.41 of 2016 is concerned, there is admittedly a delay of two days in filing the appeal before the Commissioner (Appeals). We appreciate that the delay is minimal. But delay there is. The appellant ought to have at least explained the delay and sought condonation thereof. Before us, it was con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt issue which arises only in CEA No.41 of 2016 is whether the appeal ought to have been filed under the Finance Act or under the Central Excise Act? The appellant is at liberty to agitate that issue also afresh before the Commissioner (Appeals) who is the appellate authority under both the Acts. The Tribunal did not deal with this issue as it had dismissed the appeal on the ground of limitation a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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