2021 (6) TMI 857

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....covery charges (at instance of Department) during the period 1999 to 2004. In view of the instructions of Board vide letter No. A/11018/8/91.Ad.-IV dated 01.04.1991, it appeared to appellant that they have been subjected to excess cost recovery charges and are entitled to refund. Appellant was also allowed sharing of cost recovery charges by the jurisdictional Commissioner vide Order No. C. No. V(16) MISP/19/2000 dated 21.12.2000 for the financial year 2000-01 and onwards. The appellant filed a refund application for Rs. 1,59,710/- on 05.05.2005 before the Assistant Commissioner. The Assistant Commissioner vide Order-in-original dated 05.10.2005 determined the amount refundable at Rs. 1,11,370.33 and adjusted the said refund amount against ....

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....fy the Order-in-original dated 16.11.2006. 6. Being aggrieved, the appellant filed D.B. Civil Writ Petition No. 9275/2007 against orders of Assistant Commissioner dated 16.11.2006 and 18.01.2007 before the Hon'ble Rajasthan High Court. 7. During pendency of the Writ Petition, this Tribunal vide Final Order No. A/50529/2015-Ex.DB allowed the appeal and set aside the Order-in-Original No. 110/2005 dated 30.11.2005 thereby setting aside the demand of Rs. 9,36,367/-. 8. Thereafter the appellant filed Miscellaneous application before the Rajasthan High Court (in the writ application) to bring order of the Tribunal on record. The Hon'ble Rajasthan High Court vide its Final Order dated 04.05.2017 directed the Department to decide the applicatio....

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....ication, by the Appellate Authority. 12. In view of the order & indulgence of the Hon'ble High Court dated 06.10.2017, the appellant filed the appeal before the Commissioner (Appeals) which have been dismissed on the ground of limitation, by impugned order dated 28.11.2017. 13. The appellant have submitted aforementioned facts by way of written submissions. 14. As per the ground of appeal the appellant have urged that the Commissioner (Appeals) has failed to appreciate the facts and circumstances and in view of the indulgence granted by Hon'ble High Court, should have heard the appeal on merits and decided the same. Dismissing of appeal on the ground of limitation has resulted in gross miscarriage of justice, inspite of the binding direc....

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....when the appellant approached the Hon'ble High Court in review on Miscellaneous application for revival of the application, the Hon'ble High Court directed the appellant to pursue the appellate remedy in view of the subsequent Order-in-original dated 19.06.2017, (allowing truncated amount of refund). Thus, in the facts and circumstances of the present case, limitation has to be computed on and from 06.10.2017 (plus the time taken in obtaining certified copy of the miscellaneous order). Accordingly, I hold that the appeal filed before the Commissioner (Appeals) was within time. Therefore, this appeal is allowed by way of remand to the Commissioner (Appeals) with the direction to hear the appeal on merits and pass a reasoned order after consi....