Case Law Details
Sunbright Cement Agencies Pvt Ltd. Vs. Commissioner (Appeals) (CESTAT Mumbai)
What is important to note is that even the initial period of three months provided for in sub-section (3) of section 85 of the Finance Act for presenting an appeal begins to run from the date of receipt of the order. The order was received by the appellant only on July 05, 2021. The Commissioner (Appeals) has drawn a presumption that the order was served upon the appellant in 2009 itself, because of the communication dated February 10, 2009 of the Superintendent (Adjudication) requesting the Assistant Commissioner to deliver the order upon the Appellant. There was nothing on the record before the Commissioner (Appeals) to come to a definite conclusion that the order was served upon the Appellant in 2009. The order also does not mention that the Assistant Commissioner of the Superintendent (Adjudication) had any acknowledgment about receipt of the order by the appellant. A statutory right of presenting an appeal within a specified time can be defeated only by cogent evidence about service of the order and such a right cannot be defeated by drawing a presumption about service of order. The Commissioner (Appeals), therefore, committed an error as a result of which the appellant has been deprived of his right to prosecute the appeal filed before the Commissioner (Appeals).
The order dated November 26, 2015 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside. The appeal shall now be heard on merits. As this is an old matter, it is expected that the Commissioner (Appeals) shall make an endeavor to decide the appeal at an early date and preferably within the period of four months from the date a certified copy of the order is produced by either of the party before the Commissioner (Appeals). The appeal is, accordingly, allowed.
FULL TEXT OF THE CESTAT MUMBAI ORDER
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