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TMI Blog2023 (1) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... of the period of limitation contemplated under section 35(1) of the Excise Act. What was necessary to be ascertained by the Commissioner (Appeals) for the purpose of limitation under section 35(1) of the Excise Act was the date on which the order was actually served upon the appellant. What is also important to notice is that the mode by which the order was communicated has also not been mentioned nor noticed by the Commissioner (Appeals), leave alone the date on which it was received by the appellant. When the Department failed to provide any evidence to controvert the submission of the appellant that the order was actually received by the appellant only on March 27, 2019, the appeal shall be deemed to have been filed within the stipulated period of sixty days as it was filed on May 27, 2019. The order of the Commissioner (Appeals) rejecting the appeal on the ground of limitation cannot, therefore, be sustained. What transpires from the order of the Assistant Commissioner is that even the date on which the order was passed has not been mentioned either at the start of the order or where the Assistant Commissioner has signed the order. This is not the only case in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period but also beyond the extended period of limitation. In this connection, the Commissioner (Appeals) had sought information from the Assistant Commissioner, who by letter dated February 26, 2020, intimated that the said order dated January 18, 2019 was despatched to the appellant on the same day and copy of the relevant despatch register was also submitted to the Commissioner (Appeals). The Commissioner (Appeals) noted that the Department had submitted sufficient evidence of the despatch of the impugned order dated January 18, 2019 but the appellant had not produced any evidence to prove that the impugned order was not received by it. The relevant portion of the order passed by the Commissioner (Appeals) is reproduced below : 6. In this regard on going through the FORM No. E.A. 1 filed by the appellant, it is observed that at S.No. 4 against Date of Communication of the order appealed against it has been mentioned as 27.03.2019 (Certified copy as original copy not delivered) . Further on going through the contents of the appeal memo and documents attached with appeal memo, I do not find any evidence furnished by the appellant with regard to any correspondence with de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly provides that any person aggrieved by any decision or order passed under the Excise Act by a Central Excise Officer may appeal to the Commissioner (Appeals) within sixty days from the date of the communication of such decision or order and, therefore, what was actually required to be ascertained by the Commissioner (Appeals) for the purpose of limitation was the date on which the order was served upon the appellant and not the date on which the order was despatched. Learned counsel for the appellant also placed reliance upon the provisions of section 37C of the Excise Act to contend that every decision or order can be served only in accordance with the provisions of sub-section (1) of section 37C read with sub-section (2). Sub-section (2) provides that every decision or order passed shall be deemed to have been served on the date on which the decision or order is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1). Learned counsel, therefore, submitted that if the date of receipt of the impugned order is taken as March 27, 2019, the appeal would be within the period of limitation. 6. Learned authorized representative appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffixed in the manner provided in sub-section (1). 10. It is not in dispute that the date of the order passed by the Assistant Commissioner, which order had been assailed before the Commissioner (Appeals), is January 18, 2019. It is also not in dispute that in Form EA-1 the appellant had specifically stated that the copy of the order was actually served upon the appellant on March 27, 2019. The Commissioner (Appeals) had sought verification from the Office of the Assistant Commissioner regarding the date on which the order was served upon the appellant and in this connection the Office of the Assistant Commissioner informed the Commissioner (Appeals) that the order was despatched to the appellant on January 18, 2019 and in support thereof a copy of the relevant page of the despatched register was submitted. In our opinion, this was not relevant for the purpose of determination of the period of limitation contemplated under section 35(1) of the Excise Act. What was necessary to be ascertained by the Commissioner (Appeals) for the purpose of limitation under section 35(1) of the Excise Act was the date on which the order was actually served upon the appellant. What is also importa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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