TMI Blog2014 (2) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... our view, begs the question of when the order of the Commissioner (Appeals) was communicated. Once the legislature has stipulated that the period of limitation under Section 35B (3) commences only upon the communication of the order which is sought to be appealed against, the Tribunal ought to have applied its mind to precisely when the order under appeal was communicated. Tribunal was not justified in dismissing the appeal. Moreover, if an appeal is not filed within the period of three months, the Tribunal has the power to condone the delay under Sub section 5 of Section 35B if sufficient cause is shown. The question of condonation would of course, arise only, when the Tribunal comes to the conclusion that the appeal was not filed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be imposed. Both the appellant and its Director filed a reply on 15 December 2008 and 16 January 2009. An order of adjudication was passed by the Deputy Commissioner, Central Excise on 18 March 2009, confirming the demand and imposing a penalty in the like amount on the appellant and its Director. Appeals were filed by the appellant and its Director before the Commissioner (Appeals), Lucknow. The appeal filed by the appellant was dismissed on 23 November 2009 and that filed by its Director was dismissed on 28 January 2010. The order of the Commissioner (Appeals) was challenged by the appellant's Director before the CESTAT. The CESTAT allowed the appeal filed by the Director of the appellant. On 1 May 2010 and on 4 May 2010 the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information under the Right to Information Act, a photo copy of the order in appeal was provided to the appellant. The appellant filed an appeal before the CESTAT on 17 January 2013 and filed a Miscellaneous Application contending that the appeal was within time from the date of the actual communication of the order. The appeal has been dismissed by the impugned order of the Tribunal. Under Section 35B(3) of the Central Excise Act, 1944, the appeal before the Tribunal against an order passed by the Commissioner has to be filed within a period of three months from the date on which the order sought to be appealed against is communicated. However, under Sub section 5, the Tribunal is permitted to admit an appeal after the expiry of the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) after which the appellate order was passed on 23 November 2009, the appellant ought to have checked up with the office of the Commissioner (Appeals), if the order was not received. This in our view, begs the question of when the order of the Commissioner (Appeals) was communicated. Once the legislature has stipulated that the period of limitation under Section 35B (3) commences only upon the communication of the order which is sought to be appealed against, the Tribunal ought to have applied its mind to precisely when the order under appeal was communicated. That question could not have been answered by finding fault that the appellant did not verify with the office of the Commissioner (Appeals) when the proceedings were disposed of. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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