2014 (5) TMI 718

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..... 2. In the facts of the case, the following question of law arises for consideration of this court in the present appeal : "Whether in the facts and circumstances of the case, the Tribunal committed a substantial error in allowing the appeal of the Department ex parte holding that assessee's appeal before the Commissioner (Appeals) under Section 35 of the Central Excise Act, 1944, was time-barred?" 3. The facts in the background are thus. The appellant-assessee engaged in the business of manufacture of textile fabrics was served with a show cause notice dated 30-9-2004 issued by the Assistant Commissioner, Excise. It was the case of the Excise Department that its officers had searched the appellant's premises on 8-7-2003 and a....

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....s passed on 20-3-2006. 3.2 It was the case and explanation of the assessee that the order dated 20-3-2006 was received by his clerk one Amratbhai Shankarbhai Prajapati, who did not inform the assessee about the order and the order remained under the drawer and was misplaced; that the assessee acquired knowledge of the order only when the notice pursuant to that order was received. 3.3 The Commissioner (Appeals) took view that the appellant received the order on 3-10-2006 and held the appeal before it was within time and entertained the appeal. The Tribunal, however, did not agree in the impugned order and ex parte held that assessee's appeal was time-barred. 4. A look at the provision of Section 35 of the Act, which provid....

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....irit of the provisions of Section 35 prescribing the time limit. Commissioner (Appeals) should not have admitted the appeal and therefore the order of the Commissioner (Appeals) is not legal and proper. Accordingly, the order of the Commissioner (Appeals) is set aside and order of the Original Authority is restored." 5. Considering the case of the appellant herein before the authorities that though the order of Assistant Commissioner was dated 20-3-2006, it was received in his office on 6-4-2006 by the clerk of the firm received it, who did not inform the proprietor-assessee about it, the moot question before the Tribunal was that what could be said to be the date of communication of the order. The issue of limitation was dependent th....