P.G. Chacko, Judicial Member - This application filed by the appellant seeks waiver of pre-deposit and stay of recovery in respect of the adjudged dues. On a perusal of the records and hearing both sides, we have found the appeal itself fit for summary disposal. Accordingly, after dispensing with pre-deposit, we take up the appeal.

2. This appeal of the assessee is directed against the appellate Commissioner’s order rejecting their appeal against an adverse order of the adjudicating authority, as time-barred. It is submitted by the learned counsel for the appellant that a copy of the order-in-original was received by them on 08.03.2011 and that an appeal against the same was filed with the Commissioner (Appeals) on 01.08.2011. That appeal was within the condonable period of delay of 3 months specified in the proviso to Section 85(3) of the Finance Act 1994. It is submitted that the appellant was not given an opportunity to show that there was sufficient cause for condonation of that delay, though, in the appeal memorandum itself, this opportunity was specifically sought. On a perusal of a copy of the appeal memorandum filed by the appellant before the lower appellate authority, we have found this submission to be factually correct. The appeal memo contained specific submissions to the effect that the appellant could not present the appeal within 3 months from the date of receipt of the order-in-original and that they were prevented by sufficient cause from presenting the appeal within such period. The appeal memo requested the Commissioner (Appeals) for condonation of the delay. It is submitted by the learned counsel that the impugned order was passed by the Commissioner (Appeals) without giving the appellant any opportunity of being heard and, therefore, the appellant was disabled from substantiating their plea for condonation of the delay of the appeal as also from making out a case on merits. In this connection, it is also pointed out that the appellant paid the entire amount of service tax demanded by the original authority. According to the learned counsel, in these facts and circumstances, the learned Commissioner (Appeals) ought to have condoned the delay of appeal and to have disposed of the appeal on merits without asking for pre-deposit.

3. We have also heard the learned Additional Commissioner (AR) who has laid, focus on the aspect of limitation. It is submitted that, as per the original records of the department, a copy of the order-in-original was dispatched by registered post, with acknowledgment due, to the assessee on 22.02.2010. The dispatched article did not return and therefore it could be presumed that it was duly served on the party. In the case of Commissioner v. Mohan Bottling Co. (P.) Ltd. 2010 (255) E.L.T. 321 (Punj. & Har.) = (2010-TIOL- 840-HC-P&H-CX), the Hon’ble High Court considered Section 37C of the Central Excise Act and held that dispatch of adjudication order by registered post AD to the assessee was sufficient compliance with the said provision of law. Therefore, it is submitted that the dismissal of the assessee’s appeal by the learned Commissioner (Appeals) on the ground of limitation cannot be faulted.

4. We have considered the submissions. Considering the peculiar facts and circumstances stated before us, we are of the view that this appeal should be allowed by way of remand so that the appellant will get a reasonable opportunity of being heard on their plea for condonation of delay of appeal as also on the merits of the case depending on the results of the application for condonation of delay. The delay was clearly stated in the memo of appeal presented before the Commissioner (Appeals). It was also categorically stated that there was sufficient cause for condonation of that delay. The learned Commissioner (Appeals) ought to have given the appellant a reasonable opportunity to establish the sufficiency of cause if any for condonation of the delay of appeal. This opportunity, obviously