Wrong limitation provision in service tax appeal led to remand for merits after delay was treated as condoned.

In service tax appeals, the appellate limitation is governed by Section 85(3) of the Finance Act, 1994, not by Section 35 of the Central Excise Act, 1944. The Commissioner (Appeals) had dismissed the appeal as time-barred on the wrong limitation provision, so the Tribunal treated any delay as condoned, set aside the dismissal, and remanded the matter for fresh decision on merits after hearing the assessee.

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Issues: Whether the appeal against the Commissioner (Appeals) was liable to be rejected as time-barred, and whether the matter should be remanded for fresh decision on merits after treating the delay, if any, as condoned.

Analysis: The appeal before the Commissioner (Appeals) had been dismissed on the footing that it was filed beyond the prescribed period, with reference to the limitation under Section 35 of the Central Excise Act, 1944. In service tax matters, however, the relevant appellate limitation was governed by Section 85(3) of the Finance Act, 1994. The order under challenge proceeded on a mistaken application of the time-limit, and the appellant sought consideration on merits. The Tribunal therefore directed that the delay, if any, be treated as condoned and that the appeal be reheard after giving the appellant an opportunity of hearing.

Conclusion: The dismissal on limitation was set aside and the matter was remanded for fresh adjudication on merits, in favour of the assessee.

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