9911796707
TMI Blog2021 (7) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... jecting the refund claim of Rs. 11,42,999/- submitted under section 11B of the Central Excise Act, 1944, as made applicable to service tax matters by virtue of Section 83 [the Finance Act]1 , has been dismissed for the sole reason that the appeal was filed beyond the period prescribed under section 85 (3) of the Finance Act. 2. Section 85 of the Finance Act deals with Appeals to the Commissioner of Central Excise (Appeals) and sub-section (3) of Section 85, which is relevant for the purposes of this appeal, is reproduced here below :- "85(3) An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority, relating to service tax, interest or penalty under this Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed by 88 days. This delay is due to mis-guidance. Kindly condone the delay by 88 days as this delay was due to bonafide belief." 4. The Commissioner (Appeals), by order dated 31 March 2011, rejected the appeal for the reason that it was filed even beyond the further period of three months after the expiry of the normal period of three months. It would be appropriate to reproduce the observations made by Commissioner (Appeals) in this regard :- "10. I have carefully gone through the case records, grounds of appeal/stay application/application for condonation of delay in filing of appeal, records of personal hearing and the case laws relied upon by the appellant. Firstly I take up the application filed by the appellant on limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant contention of receiving the impugned order on 24.11.2009 without submitting any documentary evidence to this effect appears only to cover up their case under the condonation limit of three months and accordingly I reject the same". (emphasis supplied) 5. We have heard Ms. Priyanka Goel, learned Counsel for the appellant and Shri Arun Kumar Thapliyal learned Authorized Representative for the Department. 6. Learned Counsel for the appellant submitted that the order dated 26.10.2009 was actually received by the appellant only on 14.11.2009, but the Commissioner (Appeals) disbelieved this fact solely for the reason that in normal course this letter should have been received by the appellant in the first week of November 2009. The subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant, then it was for the Commissioner (Appeals) to have made proper enquiries from the post office to dispel this doubt, but that was not done and only a presumption has been drawn that since the order was dispatched on 26.10.2009 by registered post, "In normal course this letter must have been received in the first week of November 2009". 9. We fail to understand how such a presumption could have been drawn by the Commissioner (Appeals). In the absence of any contrary evidence before the Commissioner (Appeals), the date indicated by the appellant regarding receipt of the order should have been accepted by the Commissioner (Appeals). If this date 14.11.2009 [wrongly mentioned as 14.11.2011 by the Commissioner (Appeals)] is tre ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
