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2018 (9) TMI 987 - AT - Service TaxCondonation of delay in filing appeal - Period of limitation - case of Revenue is that there was delay of more than 90 days in filing the appeal and it was outside the purview of the powers of the Commissioner (Appeals) - Held that - The adjudicating authority issued a corrigendum dt.3.6.2016 to the Order-in-Original dt.12.4.2016 within two months from the date of Order-in-Original - It is settled law that the corrigendum is part and parcel of the order intended to be rectified and hence the period of filing appeal is to be reckoned from the date of corrigendum. The period of limitation in the present case, is to be computed from the corrected date of the order, which is 3.6.2016. By taking the date of corrigendum, the appeal is within the period of limitation - matter is remanded back to the Commissioner (Appeals) to consider the appeal filed by the appellant on its merits - appeal allowed by way of remand.
Issues:
1. Rejection of refund under Notification No.42/12-ST dt.29.6.2012 2. Rejection of refund claim by adjudicating authority 3. Appeal rejection due to delay in filing 4. Counting of limitation period from the date of corrigendum Analysis: 1. The appellant, a manufacturer-exporter registered with the Department, received a show cause notice for the rejection of a refund amounting to ?5,28,051 under Notification No.42/12-ST dt.29.6.2012. The refund claim was rejected by the adjudicating authority through an Order-in-Original dt.12.4.2016, later corrected by a corrigendum issued on 3.6.2016. The appellant's appeal before the Commissioner (Appeals) was rejected due to a perceived delay in filing the appeal beyond the limitation period of 90 days, as the original order was despatched via registered AD post. This led to the appellant filing a further appeal challenging the rejection. 2. The appellant argued that they did not receive the original Order-in-Original dt.12.4.2016 and only became aware of the situation upon receipt of the corrigendum on 3.6.2016, prompting them to file the appeal on 1.8.2016, well within the limitation period. Citing legal precedents, the appellant contended that the limitation period should be calculated from the date of service of the corrigendum order, not the original order. The appellant relied on judgments such as Arihant Telecommunications vs. Union of India, Pan Drugs Ltd. vs. Union of India, Fast Track Tour & Travels vs. Union of India, and Sheikh Safdar vs. CC, Nhava Sheva to support their argument for setting aside the impugned order. 3. The Revenue's representative argued that the appellant had indeed received the original order and should have filed the appeal within the stipulated time frame, as highlighted in the Commissioner (Appeals) order. However, upon review, the Member (Technical) found that the corrigendum issued within two months of the original order was integral to rectifying the errors in the order. It was established that the limitation period for filing the appeal should be reckoned from the corrected date of the order, as per legal precedents cited, including decisions from the Bombay High Court, Gujarat High Court, Jharkhand High Court, and CESTAT Mumbai. Consequently, the impugned order was set aside, and the matter was remanded back to the Commissioner (Appeals) for a review based on the corrected date of the order. 4. The judgment emphasized the importance of considering corrigendums as part of the original order, with the limitation period for appeals starting from the corrected date. By aligning with established legal principles and precedents, the Member (Technical) allowed the appeal by way of remand, ensuring the appellant's right to a fair consideration of their case on its merits by the Commissioner (Appeals).
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