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2014 (5) TMI 718 - HC - Central ExciseCondonation of delay - Bar of limitation - Whether in the facts and circumstances of the case, the Tribunal committed a substantial error in allowing the appeal of the Department ex parte holding that assessee’s appeal before the Commissioner (Appeals) under Section 35 of the Central Excise Act, 1944, was time-barred - Held that:- appellant herein before the authorities that though the order of Assistant Commissioner was dated 20-3-2006, it was received in his office on 6-4-2006 by the clerk of the firm received it, who did not inform the proprietor-assessee about it, the moot question 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 limitation was inextricably linked with the factual plea. Therefore also, it was not only necessary but was indispensable for the Tribunal to decide the same only after bi parte hearing and after giving the opportunity to the other side - Matter remitted back - Decided in favour of assessee.
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