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TMI Blog2012 (9) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , Advocate, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. - Heard DR for the appellants and learned advocate for the respondent. This appeal arises from order dated 18th May 2005 passed by Commissioner (Appeals), Meerut. By the impugned order the appeal filed by the department against the order of the original authority has been dismissed solely on the ground of bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed on 24-9-2002 which was reviewed by the Commissioner on 22nd September 2003 which was well within the period prescribed under Section 35E(2) and communicated to the department on 14th of November 2003 and consequently the appeal was filed on 25th November 2003. It was also submitted on behalf of the department that the facts stated in the memo of appeal are verified by the Commissioner as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of review order as such even though it was to the knowledge of the Commissioner (Appeals) that the appeal has been filed pursuant to the exercise undergone as required under Section 35E(2) read with sub-section (3) thereof. 6. Section 35E(2) as was enforced at the relevant time provided thus : "The [Commissioner of Central Excise] may, of his own motion, call for and examine the record of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or sub-section (2) the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the [Commissioner (Appeals)] within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the [Commissioner (Appeals)], as the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts, certainly the impugned order cannot be sustained and is liable to be set aside while holding that the appeal was filed within the period of limitation and therefore it was necessary for the Commissioner (Appeals) to deal with the same on merits in accordance with provision of law. Accordingly, the appeal succeeds. The impugned order is set aside and the matter is remanded to the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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