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TMI Blog2012 (11) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... otification. The refund claim is related to service tax. Under these circumstances the provisions of Section 85 of Finance Act, 1994, would be applicable. And the Original Adjudicating Authority should have issued the preamble applicable to the service tax matters. Commissioner has calculated 90 days whereas Section 85 speaks of three months. Therefore, the calculation itself is made in an incorrect manner - the appeals are required to be remanded to the Commissioner (Appeals) to consider the matters afresh treating the matters as relating to Service Tax - in favour of assessee by way of remand. - ST/377/2011 - - - Dated:- 26-10-2012 - MR. M.V. RAVINDRAN, J. Represented by: For Assessee: Shri Dharmendra Shah, Assistant Manage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority and Commissioner (Appeals) have not bothered to verify the legal position. In the preamble of order in original, the appellant has been informed that appeal has to be filed within 60 days in the form EA1, which is applicable to Central Excise appeals. At this stage learned DR submitted that the sub-section (3) of Section 85 gives an impression that it would be applicable only in the case of service tax demands for differential duty where interest and penalties are involved. He drew my attention to the clause service tax, interest or penalty in this Chapter used in sub-section (3) of Section 85 of Finance Act, 1994. It is his submission that in the case of refund, Section 85 would not be applicable and therefore, preamble of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e months. Therefore, the calculation itself is made in an incorrect manner. It is the submission of the learned advocate that in all the cases, appeals have been filed in time and in some cases the due date happened to be on Saturday and therefore, as per general provisions, appeal filed on Monday will be treated as appeal filed in time and this fact has also not considered by Commissioner (Appeals). I also find that Commissioner (Appeals) has rejected the appeals on the ground of delay without proper verification and without giving opportunity to appellants he has simply observed that appellants have not filed any reasons for delay. 3.?In these circumstances, the appeals are required to be remanded to the Commissioner (Appeals) to consid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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