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TMI Blog2022 (3) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals), instead of date of Order-in- Original itself. No doubt the Order-in-Original as was challenged before the Commissioner (Appeals) is dated 16.10.2019 but as already observed above, admittedly it was passed in the absence of appellants. From the documents on record it is apparent that copy of the said order was received by the appellant only on 25.9.2020. There is no denial apparent on record to falsify this date of receipt and that the Show cause notice was not received by the appellant. The department has not produced any proof of service of said Show cause notice - the Order-in-Original was not received by the appellant immediately after it was pronounced, it being served on the wrong address not pertaining to the appellant. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r challenge before him on 25.9.2020. Had the said fact being considered by Commissioner (Appeals), he could have rightly appreciated the appeal to have been filed within the statutory period for the same. The absence thereof is sufficient violation of aforesaid principles of nature justice. The appeal filed before the Commissioner (Appeals) was filed within two months of date receipt of Order-in-Original by the appellant. Commissioner (Appeals) has wrongly held the same to be barred by time - appeal allowed by way of remand. - SERVICE TAX APPEAL NO. 51027/2021 - FINAL ORDER No. 50173 /2022 - Dated:- 4-2-2022 - MRS RACHNA GUPTA, MEMBER (JUDICIAL) Shri Ankit Totuka, Advocate for the Appellant Shri Mahesh Bhardwaj, Authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he receipt of recovery notice on 27.8.2020. Immediately thereafter on 04.09.2020, he wrote the letter to the Superintendent Central Excise Range Vidhydhar Nagar, Jaipur informing about the not receiving of the Show cause notice and the Order-in-Original. It is mentioned that in response to said letter that the certified copy of Show cause notice as well as Order-in-Original were forwarded and were received by the appellant on 25.9.2020. The appeal thereafter was filed against the said Order-in-Original on 9.11.2020. The rejection thereof as barred by time is therefore mentioned to be wrong. 3.1 Learned Counsel has brought to the notice that the Show cause notice was observed to be sent but the address was 2168, Sogani Bhawan, Maniharon k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought by the appellant. Appeal is accordingly prayed to be dismissed, 5. After hearing the rival contentions, and perusing the record, I observe that moot question to be adjudicated is- 1. Whether the appeal before the Commissioner (Appeals) was filed within the prescribed limitation period ? 2. Whether the sufficient opportunity of hearing was available with the appellant ? Following facts are relevant to be considered to adjudicate the above questions: 1. The show cause notice was issued at the address: 2168, Sogani Bhawan, Maniharon ka Rasta, Kishanpole Bazar, Jaipur 2. Order in-Original was also served at 2168, Sogani Bhawan, Maniharon ka Rasta, Kishanpole Bazar, Jaipur 3. The registered address of the appellant wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that copy of the said order was received by the appellant only on 25.9.2020. There is no denial apparent on record to falsify this date of receipt and that the Show cause notice was not received by the appellant. The department has not produced any proof of service of said Show cause notice. Hon ble Apex Court in the case of Collector of Customs, Cochin Vs. Trivandrum Rubber Works Ltd. reported as [1999 (106) E.L.T.9 (S. C.)] has held that the notice for the short levy is required to be served on the person chargeable with the duty. In that case the notice rather was served but to the Customs House Agent of the importer, the appellant therein still the Hon ble Apex Court concluded that the notice was not construably served upon the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appeal before Commissioner (Appeals) was apparently filed on 9.11.2020. i.e very much within the time limit prescribed by section 84 of the Finance Act (as reproduced above). Resultantly, the first point of adjudication is answered in affirmative in favour of the appellant. 8. Second point of adjudication: From the above discussion about first question it becomes clear that no opportunity of hearing was provided to the appellant to put forth his defence. First principle of natural justice i.e. Audi Alteram Partem, is not followed by Adjudicating Authority. Above discussion is very much clear that the appellant had no opportunity to make himself available before the concerned authorities to put forth his stand. The authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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