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TMI Blog2021 (9) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings of Commissioner (Appeals) are merely presumptive. There is no effort on the said adjudicating authority to ensure as to whether the order was actually received by the appellant or not. Period of limitation for filing an appeal before the Commissioner is no doubt of 2 months but this period has to reckon not from the date of Order-in-Original i.e. the order challenged before Commissioner (Appeals), but from the date of receipt of said Order-in Original by the assessee. The valuable right of the assessee to seek a remedy by way of appeal cannot be forfeited based on mere presumptions and surmises - It is clear that there is no evidence as on what date the Order-in-Original got actually received by the appellant. Since the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in Original as mentioned above alongwith the applicable interest and the proportionate penalties. 3. Being aggrieved, the order was challenged before Commissioner (Appeals) who has rejected the appeal being barred by time. The appellant is, accordingly, before this Tribunal. 4. I have heard Shri Vijai Kumar, learned Counsel for the appellant and Mr. Nagendra Yadav, learned Departmental Representative for the Department. 5. It is submitted on behalf of the appellant that the Order-in-Original dated 18.03.2019 was never received by the appellant till he got the notice of recovery proceedings and enquired about the said order, it is submitted that the order came to his notice on 17.07.2019 and the appeal has been filed on 7th Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. The valuable right of the assessee to seek a remedy by way of appeal cannot be forfeited based on mere presumptions and surmises. Appellant has placed on record the information as received under RTI Act. The said document is very well on record. Para 2 thereof reads as follows:- OIO No.19/ST-Dem/2019 dated 18.03.2019 was issued by the Assistant Commissioner, CGST Division-C, Udaipur and the OIO was sent to the Range Office to deliver it to the party and in compliance of the directions, the competent officer visited the premises of the assessee to deliver the same. On the registered premises, nobody was found to receive the OIO then the officer prepared Panchnama at the spot and chaspa it on the registered addr3ess. The cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s otherwise catena of decisions, I draw support from: 1 . In Paliwal Glass Works v. Commissioner of Central Excise, Kanpur [2010 (259) ELT 74 (Tri. Del.) it was held; In absence of evidence that order sent to Assistant Commissioner, Agra was served on party, there is doubt about services of order. Delay must be condoned giving benefit of doubt to the assessee. 2 . In Triveni Glass Ltd. V. Commissioner of C. Ex., Allahabad [2008 (224) ELT 403 (Tri. Del.) it was held that receipt of Order in Original/Notice/Summons is must for calculation of period of appeal. 11. In view of the above findings since the date of receipt of Order-in-Original apparently is 17.07.2019 and the appeal being filed on 7th August, 2019. It is hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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