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TMI Blog2012 (11) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee s appeal on merits in accordance with law and the principles of natural justice. On the question whether limitation could be lawfully pleaded for the first time by the assessee before the first appellate authority, the learned Commissioner (Appeals) shall hear both sides with due notice. Needless to say that, in the event of this issue being held in favour of the assessee/appellant on legally sustainable grounds, the plea of limitation shall be examined with reference to relevant date defined under Section 73(1) of the Finance Act 1994 and in the light of applicable case law. - Service Tax Appeal No. 1547/2010 - - - Dated:- 10-10-2012 - SHRI P.G. CHACKO J. Appearance Mrs. Sabrina Cano, Superintendent (AR), for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d [1999 (114) E.L.T. 429 (Tri.-LB)]. The learned Superintendent (AR) supplement case-law by citing CCE, Visakhapatnam Vs. Mehta Co. [2011 (264) E.L.T. 481 (S.C)]. It is also pointed out that the original authority did not have occasion to consider any plea of limitation as no such plea was raised by the assessee before that authority. As a matter of fact, no reply to the show-cause notice was filed by the assessee and no plea of limitation was raised in the written submissions filed by them before the adjudicating authority. In these circumstances, according to the learned Superintendent (AR), the learned Commissioner (Appeals) should not have allowed the assessee s appeals on the sole ground of limitation. It is further pointed out by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority can be treated as their reply to the show-cause notice. There is nothing on record to show that those written submissions included any plea of limitation. Hence the adjudicating authority did not have occasion to consider any plea of limitation. Its decision against the assessee was on the merits of the case. It is clear from the impugned order that the plea of limitation was raised for the first time before the Commissioner (Appeals). The appellate authority chose to consider that plea, and held in favour of the assessee and, that too, without going into the merits of the case. This action of the learned Commissioner (Appeals) has no justification in law and hence his order requires to be set aside. Further, the appellate Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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