RAM PYARE YADAV Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Sri Aloke Kumar, learned counsel for the petitioner and Sri B.K.S. Raghuvanshi, learned counsel for the respondents. With the consent of learned counsel for the parties, I proceed to decide the matter finally at this stage under the Rules of the Court. The petitioner's appeal preferred under Section 35 of Central Excise Act, 1944 (hereinafter referred to as "Act, 1944") has been rejected by Commissioner (Appeals) Custom, Central Excise & Service Tax, Allahabad [hereinafter referred to as "Commissioner (Appeals)"] being barred by limitation, inasmuch as order, appealed is dated 21-1-2011 while appeal was preferred in 2013.

(2.) The stand taken by petitioner is that a copy of order dated 21-1-2011 passed by Assistant Commissioner, Central Excise, Division Varanasi was never delivered or served upon him in the manner prescribed in Section 37C(1) of Act, 1944. It is only when he subsequently came to know about such an order, he applied and obtained certified copy thereof. Appellate Authority, however, has taken view that order-in-original, was issued and dispatched on 21-1-2011 and appeal having been filed on 28-5-2013, is barred by limitation.

(3.) In my view, Appellate Authority has not looked into relevant question as to on which date order, appealed against, was tendered or delivered to the petitioner in order to attract the provision of "deeming service" upon petitioner under Section 37C(2) of Act, 1944.