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2016 (12) TMI 1129 - AT - Service TaxMaintainability of appeal - appeal was filed after a delay of 18 months - whether appeal time barred or not? - Held that - In the event of non-availability of Commissioner at the headquarters the ADC/JC present in the headquarters in Patna (who was having authority to do so) was marking the dak and then passed on the letters to the CCE Cell. Both the OIO and its corrigendum are not received even by the CCE Cell. It is rightly concluded by the inquiry report that non-receipt of both the OIO and its corrigendum in CCE Cell and RRA branch of the Reviewing Authority cannot be a sheer coincidence. In view of the facts brought on record by inquiry report dated 07.06.2012 there is no reason as to why 18.11.2011 should not be considered as the date of receipt of OIO dated 29.03.2010 as the date of receipt by the Reviewing Authority. The appeal in the present case was filed on 02.02.2012 which is within a period of 3 months from the date of receipt of OIO dated 29.03.2010 - appeal was filed in time. Appeal filed by the Revenue is allowed by way of remand to the First Appellate Authority who should restore the appeal to its original number and decide the issue on merits - appeal allowed by way of remand.
Issues: Appeal filed by Revenue against rejection of appeal as time-barred due to delay of 18 months.
Analysis: 1. The appeal was filed by the Revenue against the Order-in-Appeal dated 20.05.2013 passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax, Patna, which rejected the appeal as time-barred due to an 18-month delay. The First Appellate Authority held that the appeal was filed after the prescribed time limit. 2. Despite notice, no one appeared on behalf of the respondent during the proceedings. 3. The Revenue submitted that the Order-in-Original (OIO) dated 29.03.2010 and its corrigendum dated 10.05.2010 were not received by the Commissioner of Central Excise and Service Tax, Patna. An inquiry conducted by an Additional Commissioner of Central Excise confirmed that neither the OIO nor its corrigendum was received by the Reviewing Authority/RRA branch. However, the First Appellate Authority still considered the appeal time-barred based on the receipt of the documents by the Assistant Commissioner and Range Superintendent. 4. The Tribunal observed that under the Central Excise Review procedure, the proper officer for reviewing orders passed by the Additional Commissioner is the Jurisdictional Commissioner of Central Excise and Service Tax, in this case, the Commissioner of Central Excise and Service Tax, Patna. The inquiry report highlighted that the OIO and its corrigendum were not received by the Reviewing Authority or the CCE Cell, indicating a systemic issue in document transmission. As per the report, the date of receipt by the Reviewing Authority should be considered as 18.11.2011, making the appeal filed on 02.02.2012 within the prescribed time limit. 5. Consequently, the Tribunal set aside the Order-in-Appeal dated 20.05.2013, ruling that the appeal was filed within the stipulated time. The appeal by the Revenue was allowed for remand to the First Appellate Authority to decide the issue on merits after restoring the appeal to its original number.
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