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Judgment
D.N. Patel, J.—This writ petition has been preferred challenging the order passed by Commissioner (Appeals), dated 19-2-2016 in Order-in-Appeal Nos. 98-99/JSR/2015-16 (Annexure 3 to the memo of this writ petition) against the Order-in-Original Nos. 01-02/MP/Offence/AC/2015, dated 17-9-2015, whereby the appeal preferred by this petitioner under Section 35F of the Central Excise Act, 1944 has been rejected, on the ground of being time-barred having been filed beyond the period of condonable delay of 30 days as per Section 35F the period of limitation is 60 days. Condonable period is 30 days and hence, this petitioner has filed this appeal beyond the period of condonable delay by 3 days and order has been passed by the Commissioner (Appeals), as submitted by the counsel for the petitioner.
Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that Order-in-Original was passed on 28-8-2015 imposing liability of payment of the Service Tax approximately Rs. 3,00,000/- and equal amount of penalty has been imposed. The said order was passed by the Assistant Commissioner of Central Excise and Service Tax, Jamshedpur on 28-8-2015 and was issued on 17-9-2015 and was sent on 18-9-2015.
It further appears from the facts of the case that the order-in-original was received by this petitioner on 24-9-2015, as alleged by the petitioner.
Thus, looking to the provision of Section 85(3A) of the Finance Act, 1994 the period to prefer an appeal is 2 months from the date of receipt of the Order-in-Original and there is a further period of 1 month for which a delay can be condoned. In the facts of the present case the appeal was preferred by this petitioner on 19-11-2015.
Thus, this petitioner can prefer appeal with a delay condonation application along with the appeal against the Order-in-Original and the same will be decided by the Commissioner (Appeals) on its own merits, looking to the date of receipt of the Order-in-Original.
This aspect of the matter has not been properly appreciated by the Commissioner (Appeals) while rejecting the appeal preferred by this petitioner vide order dated 22-2-2016. At least a chance should have been given to the petitioner to file delay condonation application and to point out the order-in-original received by this petitioner on 24-9-2015 or any other date as per the evidence supplied by him.
In view of this fact, we therefore, quash and set aside the order of Commissioner (Appeals) dated 22-2-2016 (Annexure-3 the memo of this writ petition) and we allow this petitioner to prefer delay condonation application with proper averments, allegations, annexures and evidences and the Commissioner (Appeals), will decide the delay condonation application, if any, on its own merit, on the basis of the evidence on record.
The writ petition is disposed of, in view of this observations.