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TMI Blog2022 (5) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-Original is mentioned by the appellant as 03.06.2020. There is no denial for the said fact except the mention that earlier notices including the service of show cause notice and the service of Order-in-Original were made on the same address as that of the notice which was received by the appellant on 3.6.2020. However, it is perused that no document is produced on record by the department to prove the service of said earlier notices and even of the SCN. It is also apparent that O-I-O has been passed exparte. There have been catena of decisions which mandate that it is not the issuance of notice but the service there of which is relevant for holding the same as the evidence of the services of the notice. The said document is misera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case - appeal allowed by way of remand. - SERVICE TAX Appeal No. 51906 OF 2021 - FINAL ORDER No. 50397/2022 - Dated:- 26-4-2022 - Ms. RACHNA GUPTA, MEMBER (JUDICIAL) Ms. Neha Somani, Advocate for the appellant Mr. Mahesh Bharadwaj, Authorised Representative for the Respondent ORDER Present appeal has been filed to assail Order-in-Appeal No231/2021 dated 06.07.2021 vide which the Commissioner (Appeals) has rejected the appeal before him on the grounds of limitation holding that the appeal was filed with a delay of more than 10 months from the expiry of stipulated period of two months for filing the appeal before him. 2. The facts in brief relevant for the purpose are that the appellant is a service provider in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2020 when the appellant received a communication dated 29.05.2020 sent by the department via speed post mentioning about the confirmation of demand, interest and penalties upon the appellant. Learned Counsel further brought to the notice that after receiving the said communication they asked for the copy of the Order-in-Original and after receiving the same on 24.07.2020 that the appeal before Commissioner (Appeals) was filed on 31.08.2020. As such the same is very much within the period i.e. within two months from the date of the knowledge of the order. Commissioner (Appeals) is alleged to have committed an error by still rejecting the appeal on the ground of limitation. It is also submitted by the learned Counsel that the appellant othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. 8. The bare perusal of the provisions makes it clear that the period of limitation of two months as is stipulated therein, has to reckon from the date of receipt of the decision of the Adjudicating Authority against which the appeal has been filed. In the present case the date of receipt of the Order-in-Original is mentioned by the appellant as 03.06.2020. There is no denial for the said fact except the mention that earlier notices including the service o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date when the fact of passing of the Order-in-Original came to the notice of the appellant on 03.06.2020. As already observed above, the relevant date in terms of Section 85 of the Finance Act, the date of receipt of the order of the adjudicating authority. As per Department s own document the said date is 24.07. 2020. Hence the appeal filed on 31.08.2020 was very much within the period of two months stipulated under section 85 (3) of the Finance Act 1994 for the purpose of filing the said appeal. Accordingly, it is held that findings in para 6.2 of the order under challenge are not sustainable. However the order of Commissioner (A) was merely on the technical grounds. The order on merits is yet to be passed. Matter is therefore, remand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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