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TMI Blog2021 (8) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... n for him to not to appear before the Original Adjudicating Authority and the same was the reason for acquiring no knowledge of Order-in-Original dated 16.11.2018 till the recovery proceedings got initiated against the appellant. The affidavit to this effect is placed on record. Mere dispatch of the order cannot be considered as service. The period of 2 months for filing the appeal has to reckon not from the date of order announced but from the date of receipt of said order by the assessee in terms of Section 35 of Central Excise Act, 1944. Section 37 C further provided the mode of service. In view of those statutory provisions, it is not held appropriate to consider the proof of dispatch as sufficient proof of service - the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply agency service. However, a show cause notice No.2366 dated 23.11.2017 was served upon them proposing the recovery of service tax amounting to ₹ 4191817/- alongwith the interest and the proportionate penalties. It is submitted that the said Show Cause Notice was in-fact, not received by the appellant till the aforesaid Order-in-Original was passed against them and the said order confirming the proposal of the aforementioned show cause notice had also not come to the notice of the appellant till the recovery proceedings were initiated against him. It is thereafter that vide letter dated 20th Feb., 2019 the copy of OIO was requested from the Department. The appellant received the said copy on 20th Feb., 2019 and affidavit to this eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidavit to this effect is placed on record. 6. I also find attached the letter dated 20th February, 2019 sent by the Department to the appellant in response to his written request of the even date (20th Feb., 2019) requesting for the copy of OIO. The said document makes it clear that the copy of OIO was provided by the Department to the appellant on 20th Feb., 2019. There is no document on record to falsify the affidavit of the appellant. In the above noticed circumstances, I do not find any other reason to not to rely upon the said deposition. Also for the reason that the report of Jurisdictional Commissioner is the sole reliance for Commissioner (Appeals) to hold the appeal before him as barred by time. But the said report except creat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2020-TIOL-766-CESTAT-MAD] which is held as follows:- .Appellant should not suffer for no fault on its part and hence, Bench deems it proper to set aside the impugned order with a direction to the First Appellate Authority to pass a fresh order on merits after hearing the appellant and following the principles of natural justice. 8. Since admittedly no acknowledgement receipt was received by the Revenue, question of the production thereof on the record does not at all arise. In the given circumstances I have no option but to hold that the Original Adjudication order was not received by the appellant prior to 20th February, 2019. The appeal filed before Commissioner (Appeals) on 18.04.2019 was very-much within the period of tw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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