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TMI Blog2019 (1) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... filed an affidavit deposing that the order got communicated to him only on 10.08.2015 - reliance placed in the case of M/s. T. Prabhakara Rao vs. Commissioner, Central Excise, Hyderabad-III [2008 (8) TMI 327 - CESTAT, BANGALORE], wherein it was held that appellant can prove non-receipt of order by filing affidavit and that the same is not rebutted for want of the proof of dispatch by the Revenue for no acknowledgement produced, the Tribunal is empowered to condone the delay. The delay is condoned - the Commissioner (Appeals) has dismissed the appeal in limini on limitation and has not given any findings on the merits of the appellant - matter remanded to Commissioner (Appeals) for adjudication on merits - appeal allowed by way of remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly prayed to be set aside and the appeal is prayed to be decided on merits. 3. While rebutting these arguments, ld. D.R. has relied upon Singh Enterprises vs. CCE, Jamshedpur reported in 2008 (221) E.L.T. 163 (S.C.) to impress upon that Commissioner (Appeals) has no discretion to condone the delay beyond a period of 90 days. The present appeal was filed before him beyond the said period of 90 days. Hence, Commissioner (Appeals) had no other option but to dismiss the appeal on limitation. Order is accordingly, prayed to be upheld. 4. After hearing both the parties and perusing the record, it is observed that the appellant is the sub-contractor of M/s. Siwal Builders Developers. Initially an audit was conducted against the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of communication which is relevant for reckoning of the said period of 60 days. Once, it was brought to the notice of the Commissioner (Appeals) that the order in Original was never communicated to him and that it was never served upon him in the way as is required under Section 37 C of the Central Excise Act. I opine that it was mandatory for Commissioner (Appeals) to look into the said aspect. The copy of Order-in-Original, apparently and admittedly, was received by the appellant only on 10th August, 2015. That too, it was not the certified copy. But still the Commissioner (Appeals) has held the appeal to be delayed for one year and 20 days. The period of limitation i.e. 60 days condonable by Commissioner (Appeals) for another 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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