TMI Blog2016 (6) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the First appellate authority. - Writ Appeal No. 428 of 2016, C.M.P. No. 6202 of 2016 - - - Dated:- 21-6-2016 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. Joseph Prabakar For the Respondents : Mr. A. P. Srinivas, SPC ( C CE ) JUDGMENT [ Judgment of the Court was made by S. Manikumar, J. ] Writ Appeal is directed against the order made in W.P.No.5501 of 2016, declining to issue a Writ of Certiorari, to quash the Order-in-Appeal No.349/2015 (STA-II), dated 30.11.2015, passed by the Commissioner of Service Tax (Appeals-II), Chennai, the 2nd respondent herein. 2. Facts deduced from the materials on record are that the Additional Commissioner of Central Excise, LTU, Chennai, passed an order of assessment on 29.02.2012. Appeal filed before the Commissioner of Central Excise (Appeals), Chennai, was rejected on the ground that it was filed beyond the period of limitation. Correctness of the said order has been tested in W.P.No.21811 of 2013, on the ground that the period of limitation has to be calculated, taking into account, the date of impugned order and not the date on which, the appeal was preferred. Adverting to the submissions, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in W.P.No.21811 of 2013, the Commissioner of Service Tax (Appeals), has taken up the appeal and after considering the decisions of the Tribunal in M/s.Didar Motors v. CST [Final Order No.40010 to 40012 of 2015, dated 07.01.2015] and OSA Shipping Pvt. Ltd., v. CCE, Chennai [Final Order No.40146 of 2015, dated 03.02.2015], On the aspect of limitation, the Commissioner of Service Tax (Appeals-II), at Paragraph 9.1 and 9.5, observed as hereunder: 9 (i). It is observed that the date of receipt of the impugned order is 09.03.2012 and the appeal was filed on 14.08.2012. During the material period, as per Section 85(3) of the Act (as it stood before 28.05.2012), an appeal to Commissioner (Appeals) shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority. As per Proviso to the said Section, where sufficient cause was shown, an appeal can be allowed to be presented within a further period of three months. In this case the appeal was filed after expiry of first normal 3 months period and after expiry of further period of 2 months and 7 days. Hence, the appeal falls under proviso to Section 85 ibid which provides that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, when the appeal has been held as time barred. 7. To sustain the order, impugned before us, Mr.A.P.Srinivas, learned counsel for the Revenue submitted that the Order-in-Appeal No.349 of 2015 (STA-II), dated 30.11.2015, passed by the Commissioner of Service Tax (Appeals-II), can always be challenged before CESTAT, Madras. He further submitted that when there is an alternative remedy under the statute, there is no material irregularity in the impugned order, directing the appellant to go before the CESTAT and in such circumstances, the order impugned before this Court, does not call for any interference. He prayed for dismissal of the writ appeal. Heard the learned counsel appearing for the parties and perused the materials available on record. 8. As stated supra, when the Additional Commissioner of Central Excise, LTU, passed an order for assessment, dated 29.02.2012, correctness of the same has been tested before the Commissioner of Central Excise (Appeals). Vide order, dated 24.07.2013, he has rejected the appeal, as time barred. When the said order, dated 24.07.2013, was tested in W.P.No.21811 of 2013, the Writ Court, vide order, dated 13.08.2013, has catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manufacturer Pvt. Ltd., reported in 2014-TIOL-550-HC-ALL-ST, while declaring the demand as beyond the period of one year, the Tribunal, entered into the merits of the appeal filed by the assessee and passed an adverse order. Before the Allahabad High Court, one of the substantial questions of law raised by the assessee, was when the Tribunal having held that proceedings were barred by limitation, has committed any illegality in deciding the question on merits. Whether the finding of the Tribunal on merits, is liable to be set aside? 12. While addressing the abovesaid substantial question of law, decision of the Hon'ble Supreme Court in State Bank of India v. B.S.Agricultural Industries reported in 2009 (5) SCC 121, has been pressed into service, wherein, the Hon'ble Supreme Court had an occasion to deal with a situation, where the consumer forum held that the complaint was barred by limitation, but nonetheless had proceeded to decide the issue on merits. Dealing with the issue, which is similar to the case on hand, at Paragraph 12, the Hon'ble Supreme Court in State Bank of India's case (cited supra), held as follows:- 12. As a matter of law, the consumer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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