9911796707
TMI Blog2025 (1) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... period of two months during which, otherwise, the appeal would have been filed. The present appeal apparently and admittedly has been after a delay of more than 12 months from the date of receipt of order-in-original as shown in the document received from Postal Department. Keeping in view the said statutory mandate of Section 85(3A) of Finance Act, 1994, there are no infirmity in the impugned order where the Commissioner (Appeals) has rejected the present appeal on the grounds of limitation. There are no request from the appellant even post receiving the recovery notice dated 15.02.2023 vide which appellant would have requested the department for the status/copy of the order in original. It is also observed that even after receiving the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice No. 58/2020-21 dated 23.12.2020 was served upon the appellant. The proposal was confirmed vide the Order-in-Original No. 15/2021-22 dated 25.01.2022. Being aggrieved of the said order that the appeal before Commissioner (Appeals) and was filed on 17 April, 2023. Keeping in view the delay in filing the said appeal which was much beyond the period of 60 days + 30 days as per Section 85 of Finance Act, 1994, the Commissioner (Appeals) dismissed the appeal on the ground of limitation. Being aggrieved, the appellant is before this Tribunal. 3. I have heard Ms. Nikita Jaju, learned Advocate for the appellant and Shri Viswajeet Saharan, learned Authorized Representative for Revenue. 4. Learned counsel for the appellant has mentioned that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acknowledgment document produced by the postal department, is not the appellant s authorized representative. In fact, the person could never been traced by the appellant. The affidavit of head of Pithampur plant is placed on record to this effect. Learned counsel has also relied upon the decision in the case of Saral Wire Craft Pvt. Ltd. Vs. Commr. of Cus., C.Ex. and Service tax reported in 2015 (322) ELT 192 (SC) wherein it has been held that the canteen boy is not the authorized person to receive the process. With these submissions, once again, the impugned order is prayed to be set aside, and appeal is prayed to be decided even on merits in favour of the appellant. 7. Having heard the rival contentions, foremost I peruse Section 85 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Hon ble Apex Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur reported in 2008 (221) ELT 163 (SC) when the Hon ble Court held that Commissioner (Appeals) has no power to condone the delay beyond the period prescribed under Section 35 of Central Excise Act, 1944. This Section is para materia to Section 85 of Finance Act, 1994. 9. Coming to the case law relied upon by the appellant I foremost peruse the proof of service as has been dealt with by the Commissioner (Appeals). The perusal reveals that the copy of order in original has duly been delivered by the postal department at the address of the appellant with a proper signatory receiving the said process and the mobile number of said recipient. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs before original adjudicating authority till the recovery notice was received. Otherwise, also I do not find any request from the appellant even post receiving the recovery notice dated 15.02.2023 vide which appellant would have requested the department for the status/copy of the order in original. It is also observed that even after receiving the copy of order in appeal admittedly, on 24.02.2023 the present appeal has been filed at the period of two months from the said date. The said conduct is insufficient to reflect the due diligence on part of the appellant specifically when appellant was aware of the impugned proceedings. The case law relied upon by the appellant is held not applicable to the facts of the present case as it has dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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