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M/S. H&N Agency vs Commissioner Of Central Excise, Salem

Customs Excise and Service Tax Appellate Tribunal8 September 2015

Ratio decidendi

The rule this decision rests on

Where an appellate authority dismisses an appeal as time-barred under the 60-day limit in Section 85(3) of the Finance Act, 1994, without recording the date on which the impugned order was received by the appellant, the limitation question cannot be resolved on the record. The period is to be computed from the date of receipt of the impugned order, so that date must be ascertained on the basis of evidence, and the appellate authority must call for the original record and determine both the date of receipt and the date of filing before deciding whether the appeal was beyond limitation. Before an order on limitation is passed, the appellant is entitled to a hearing in accordance with the principles of natural justice. Where limitation is resolved in the appellant's favour, the appeal must then proceed to be heard on its merits.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCH, CHENNAIST/41238/2013

[Arising out of Order-in-Appeal No.89/2013-ST, dated 26.04.2013 passed by the Commissioner of Central Excise (Appeals), Salem]

M/s. H&N AGENCY APPELLANT

Versus

COMMISSIONER OF CENTRAL EXCISE, SALEM RESPONDENT

Appearance:

For the Appellant None

For the Respondent Shri K.P. Muralidharan, AC (AR)

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 08-09-2015

FINAL ORDER NO. 41225 / 2015

None present for the appellant. Learned Commissioner (Appeals) dismissed the appeal holding that the same was filed beyond the period of 60 days prescribed under Section 85 (3) of the Finance Act, 1994, which was amended with effect from 28.05.2012 providing appeal to be filed within 60 days from the date of receipt of the impugned order.

2. However, learned Commissioner has not recorded the date on which when the impugned was received by the appellant. Once that is absent in his order, it is difficult to calculate the limitation. Therefore, matter is sent back to learned Commissioner (Appeals) to call back original record to ascertain the date of receipt of the impugned order by the appellant and examine whether the date of filing of the appeal before him was beyond limitation. Once these two dates are properly ascertained on the basis of evidence, the issue of limitation can be resolved. Appellant is entitled to the course of natural justice in the course of readjudication of limitation issue before an order is passed thereon by Commissioner (Appeals). It is needless to say that if appellant succeeds on limitation, appeal shall be heard on merit. (Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

ksr 21-09-2015

DRAFT Remarks

I II III

Date of dictation 08.09.2015

Draft Order - Date of typing 16.09.2015

Fair Order Typing 21.09.2015

Date of number and date of dispatch 22/09/2015

2 ST/41238/2013

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