9911796707
TMI Blog2021 (1) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... -Original and requested him to provide the certified copy of the said Order-in-Original and the appellant also requested the Department to provide the proof of service of the said order on them; but the Superintendent vide his email dt. 17/03/2020 only provided scanned copy of the Order-in-Original but did not provide any proof of service of the said Order-in-Original on the appellant. Since the Department has failed to prove the delivery of the Order-in-Original on the appellant, the date on which the appellant has actually received the scanned copy will be considered as the actual receipt and from that date, the appeal filed before Commissioner (Appeals) was within time. This issue has been considered in various decisions and it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a show-cause notice dt. 23/10/2018 was issued to the appellant proposing to deny cenvat credit of ₹ 15,52,986/- along with appropriate interest and imposition of penalty. After following due process, the Assistant Commissioner vide his Order-in-Original No.BEL-EXCUS-000-DIV-AKS-32-2018-19 dt. 18.03.2019 disallowed the cenvat credit of ₹ 15,52,986/- along with interest and also imposed equal penalty. Aggrieved by the said order, appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals), without going into the merits of the case rejected the appeal of the appellant on time bar. Hence, the present appeal. 3. Heard both sides and perused the material on record. 4. Learned counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition and has simply assumed that the appeal against the Order-in-Original has been filed after lapse of 60 + 30 days time limit and subsequently dismissed the appeal on time bar. The learned counsel also submitted that the Order-in-Original dt. 18/03/2019 was not received by the appellant and hence, the appellant could not file the appeal earlier. The Department has also not placed any evidence on record regarding the receipt of the Order-in-Original by the appellant. They have only submitted that the said order was dispatched to the appellant. Learned counsel also submitted that it has been repeatedly held by the Tribunal and High Court that if the order is sent by post, then the proof of actual receipt of the said order by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt informing them about the passing of the Order-in-Original and ordered to recover the credit of ₹ 15,52,986/- along with interest and penalties. Thereafter the appellant vide their letter dt. 16/03/2020 informed the Superintendent that they have not received the Order-in-Original and requested him to provide the certified copy of the said Order-in-Original and the appellant also requested the Department to provide the proof of service of the said order on them; but the Superintendent vide his email dt. 17/03/2020 only provided scanned copy of the Order-in-Original but did not provide any proof of service of the said Order-in-Original on the appellant. Since the Department has failed to prove the delivery of the Order-in-Original on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f negligence, Revenue itself is guilty for not initiating action for recovery after expiry of period for filing the appeal. Timely action for recovery is utmost essential to safeguard the interest of revenue. If Revenue itself delays the action of recovery of confirmed dues, then they cannot accuse the other party for negligence. 6. In our view, in absence of any date delivery of order dispatched by speed post earlier, we hold that the order was for the first time received by the applicant on the date as indicated by them. The order was for the first time received on 16th August 2018 and the applicant has filed the appeal on 16th November 2018 which is within the period prescribed for filing the appeal. Besides this, the other dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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