Appeal allowed by Tribunal due to timely filing, case remanded for merit decision.

The Tribunal allowed the appeal, setting aside the Commissioner (Appeals)'s dismissal based on limitation. The Tribunal held that the appeal was filed within the prescribed time limit under the pre-amended Section 35, despite the new provision reducing the filing period to 60 days. The case was remanded back to the Commissioner (Appeals) for a decision on merit, providing the appellant with a reasonable opportunity.

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Issues: Appeal dismissed on limitation based on delay in filing within the prescribed period.

In this judgment, the main issue revolved around the dismissal of an appeal by the Commissioner (Appeals) due to a delay of 129 days in filing the appeal, beyond the permissible period of 90 days. The appellant argued that the Order-In-Original (OIO) was passed on 5.9.2011 and received on 12.10.2011, with the appeal filed on 12.1.2012. The appellant contended that the appeal was filed within the time limit as per the pre-amended Section 85(3), allowing for an initial period of 3 months and a further extended period of 3 months, subject to the satisfaction of the Commissioner (Appeals). The appellant also highlighted that the appeal was correctly filed within the time limit as per the old provision of Section 35, despite the newly amended provisions reducing the time limit to 60 days. The appellant further mentioned the payment of the entire service tax amount and relied on specific case laws to support their argument.

Upon hearing both sides, the Tribunal observed that the OIO was dated 5.9.2011, received on 12.10.2011, and the appeal was filed on 12.1.2012. The Tribunal noted that the Commissioner (Appeals) had dismissed the appeal on limitation by applying the provisions of the new Section 35 of the Central Excise Act, which reduced the filing period to 60 days. However, considering the pre-amended provisions of Section 35, where an appeal should be presented within 3 months from the date of receipt of the order, the Tribunal found that the appellant had filed the appeal within the prescribed time limit. The Tribunal concluded that the appeal was well within the time limit as per the relevant provisions of the Act during the period between the OIO date and the introduction of the amended provisions. Consequently, the Tribunal set aside the impugned order and allowed the appeal by remanding it back to the Commissioner (Appeals) for a decision on merit after providing a reasonable opportunity to the appellant. The appeal was allowed by remand, and the stay application was disposed of accordingly.

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