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ST - For determining whether appeal was filed in time, merely by taking date of dispatch as date of communication of order does not appear to be proper - As vital aspect not properly considered, Appeal restored: CESTAT

By TIOL News Service

MUMBAI, MAY 18, 2016: A miscellaneous application was filed for restoration of the appeal which was dismissed by the Tribunal as non-maintainable on the ground that the appeal was filed before the Commissioner (Appeals) beyond the stipulated time period of 60 + 30 = 90 days.

The appellant submitted that they were not represented and on the date of hearing, 20.03.2015, they had requested for adjournment. Inasmuch as the order was passed ex-parte by the Tribunal. Furthermore, the Commissioner (Appeals) had dismissed the appeal as time barredby taking the date of dispatch of the order as a date of communication of the o-in-o. It is the submission of the appellant that the order said to have been dispatched on 18.04.2013 was not received by the appellant and subsequently they had requested the department for issuance of the duplicate order copy which they have received on 5.7.2013 and thereafter the appeal was filed on 23.08.2013 i.e. within normal period of 60 days, therefore, the appeal was not time barred when presented before the Commissioner (Appeals).

The AR strongly objected for restoration of the appeal.

The Bench observed -

"4. …I find that this Tribunal has passed the order without representation or without appearance on behalf of the appellant despite the adjournment request which was not recorded. Further, on going through the finding of the ld. Commissioner (Appeals), I find that the Ld. Commissioner (Appeals) has taken the date of dispatch of the order as a date of communication. The ld. Commissioner also admitted that the appeal was filed against the order copy issued by the department on request of the appellant. However, the delivery of the order dispatched on 18.04.2013 and acknowledgement thereof has not been verified by the Commissioner (Appeals), therefore, merely by taking the date of dispatch as the date of communication of the order does not appear to be proper. Since the vital aspect has not been properly considered, the appeal deserves to the restored…."

The appeal was restored to its original number.

(See 2016-TIOL-1177-CESTAT-MUM)


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