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TMI Blog2018 (8) TMI 1592X X X X Extracts X X X X X X X X Extracts X X X X ..... al and in the instant case, statement of fact reveal that it was received on 23.04.2017 and the same statement of fact is supposed to be verified by the appellant himself, which is also done in the instant case. The gap between the pronouncement of order-in-original and its communication, going by the date mentioned in the statement of fact is just 23 days. Therefore it cannot be believed to be untrue - in view of the proviso enabling the Commissioner (Appeals) to allow the appeal to be presented after two months but within a further period of one month assigning sufficient reason to his satisfaction, such presentation can be accepted by him before proceeding to hear the case in its totality, which is not done at his end. The appeal is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 (31) STR 612] etc. 3. Ld. AR for the department respondent submitted that no irregularity can be found from the order of the Commissioner (Appeals) in view of the fact that no condonation of delay application had been filed, though the same was within the condonable period of further 30 days available at the Commissioner (Appeals) s end. 4. Heard from both sides and perused the case papers. 5. It is found that the order-in-original dates 31.03.2017 and the statement of fact indicates that it was served upon the appellant on 23.04.2017 i.e. within 3 weeks of such pronouncement of order-in-original but the Commissioner (Appeals) has extracted Section 85(3A) and proviso appended to it to give his finding that he was not competent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner to allow presentation of appeal on a subsequent stage but the same should be limited to 30 days further. There is a difference in the language imported to Section 85(3A) and Section 86(5) of the Finance Act, 1994. It has also been held in the judgment of the Hon'ble Supreme Court reported in (2008) 7 SCC 169 that there is a difference in extending time for appeal to be presented and condoning delay after presentation of appeal. Hence in view of the proviso enabling the Commissioner (Appeals) to allow the appeal to be presented after two months but within a further period of one month assigning sufficient reason to his satisfaction, such presentation can be accepted by him before proceeding to hear the case in its totality, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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