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TMI Blog2023 (11) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... he same on the factory gate of the appellant's factory and from that date of service the appeal was filed with delay of approximately 6.4 years whereas for filing appeal before Commissioner (Appeals) is 60 days + condonable period of 30 days. Accordingly the appeal was rejected on time bar without going into merit of the case. Being aggrieved by the said Order in appeal, appellant filed the present appeal. 2. Shri Nilesh Suchak, Learned Chartered Accountant appearing on behalf of the appellant submits that as per Section 37 C (1) it is mandatory on the part of the department to send the order by register post and if at all the same is not delivered then the second option is to paste/affix on the factory gate. In the present case admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice-board of the officer or authority who or which passed such decision or order or issued such summons or notice." 4.1 From the above section it can be seen that the order shall be served by tendering the same or sending it by register post with acknowledgment due or by speed post with proof of deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly, the date of receipt of order copy by the appellant from their Dena Bank can only be considered as communication of the order to the appellant. From the date of receipt of order from Dena bank the appellant had filed the appeal before Commissioner (Appeals) well within stipulated time of 60 days. Therefore, there is no delay in filing the appeal. The ld. Commissioner (Appeals) should not have dismissed the appeal on time bar. Therefore, the impugned order is clearly not sustainable. Hence, the same is set aside. 4.2 The learned Commissioner (Appeals) shall decide the appeal on merit without going into aspect of limitation. Needless to say that before passing the appellate order on merit the appellant should be given opportunity of hea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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