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2018 (2) TMI 1198 - HC - CustomsCondonation of delay - Whether the CESTAT was right in passing the order dated 2nd February, 2017 and dismissing the application for rectification on the ground that the Tribunal does not have any power of review and hear the appeal on merits notwithstanding the fact that the appellant had filed an application that there was error apparent on the face of the order dated 20th October, 2014? Held that: - there was an error apparent in the order dated 20th October, 2014, for the issue was whether the appeal was preferred within limitation period, and not whether delay in filing of the appeal should be condoned. The appellant had clearly contended that there was no issue or question of condonation of delay, as the starting point of limitation would be the date of communication of the order to the appellant and not the date on which the order under challenge was passed - The primary aspect, which has to be examined and answered, is the date on which the order-in-original dated 20th March, 2007 was communicated and served on the appellant and whether the stand of the appellant that this order was communicated and served for the first time on 25th February, 2013 was correct. It is case of the appellant that the appeal was not time barred. In view of the stand of the assessee, the Tribunal would have to decide whether or not the appeal preferred by the appellant was within limitation. Issue would also arise whether limitation period would commence or taken from the date of the impugned order, date on which the order was issued or sent by post or the date on which the order was served. The second aspect/issue is a question of law. Factual and legal aspects are interconnected. In case the Tribunal comes to the conclusion that the date of the order or the date of issue would be the starting point of limitation, then the Tribunal would have to examine and decide the question of condonation of delay. Partly decided in favor of assessee and part matter on remand.
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