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TMI Blog2014 (5) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... on before the Tribunal was that what could be said to be the date of communication of the order. The issue of limitation was dependent thereon. Not only that the Tribunal decided the issue of limitation without hearing the assessee. While it was open to the Tribunal to arrive at its own findings it ought to have done the same only after giving opportunity of being heard to the assessee and not ex parte. Observance of natural justice and affording hearing to the respondent was sine qua non for the Tribunal in its adjudicatory process - The starting point of limitation under Section 35 was the date of communication of the order which was required to be decided with reference to the facts pleaded by the assessee. In other words the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment that its officers had searched the appellant s premises on 8-7-2003 and again on 15-7-2003. In that they found certain quantity of yarn as well as the quantity of grey fabrics in the factory, which materials were manufactured by one M/s. PBM Polytex Ltd. and further that they were the materials stolen from the factory of PBM Polytex Ltd. The appellant was found to have utilized the said stolen yarn and fabrics for manufacture of grey fabrics and such grey fabrics were cleared under the challans whereas part of the stock was found lying physically in the premises, which were treated to be pending goods. According to the Department the appellant had not paid duty on those fabrics which were already removed from the factory. These all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. A look at the provision of Section 35 of the Act, which provides for an appeal before CIT(A) would show that it enables any aggrieved person to prefer appeal in respect of decision and order mentioned therein within 60 days from the date of communication of such order or decision. As per the proviso to the section a further period of thirty days is available, if the Appellate Commissioner is satisfied that the appellant had sufficient cause for not presenting the appeal within sixty days. Looking to the language of Section 35 the period of sixty days will be reckoned from the date of communication of the order proposed to be challenged. It is from such date namely the date of communication of the order the period of limitation would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunication of the order. The issue of limitation was dependent thereon. Not only that the Tribunal decided the issue of limitation without hearing the assessee. While it was open to the Tribunal to arrive at its own findings it ought to have done the same only after giving opportunity of being heard to the assessee and not ex parte. Observance of natural justice and affording hearing to the respondent was sine qua non for the Tribunal in its adjudicatory process. 6. Looking at it from another angle the question of limitation considered by the Tribunal was in the facts of the case a mixed question of law and facts. The starting point of limitation under Section 35 was the date of communication of the order which was required to be decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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