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TMI Blog2016 (9) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... sent appeal is directed against the order dated 05.03.2015 passed by the learned Single Judge of this Court whereby the learned Single Judge for the reasons recorded in the order has dismissed the petition. 5. The short facts of the case is that the appellant is an assessee proprietary firm engaged in the Event Management. As per the appellant, it is paying service tax and filing return. However, audit wing of the first respondent visited the premises and the record was collected from the appellant. Ultimately on 09.03. 2011 a show cause notice came to be issued calling upon the appellant to show cause as to why the service tax of Rs. 23,28,599/- for the period from April 2007 to March 2008 should not be demanded coupled with the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of 90 days and there is no provision under the Act, to condone the delay and therefore the learned Single Judge ultimately dismissed the petition. Under the circumstances, the present appeal before this Court. 6. We have heard Mr.E.I.Sanmathi, learned Counsel appearing for the appellant and Mr.K.V.Aravind, learned Counsel appearing for the respondents. 7. We may at the outset reproduce Section 85 of the Finance Act, which is applicable to the present matter. Section 85 of the Finance Act provides for appeal to the Commissioner of Central Excise (Appeals) which reads as under: "Appeals to the Commissioner of Central Excise (Appeals). "85. [(1)Any person aggrieved by any decision or order passed by an adjudicating authority subordinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty : Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making order under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944)." 8. The aforesaid shows that the limitation would begin from the date of receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spatch is considered on 16.03.2012 then also within the outer limit of s ix months, the appeal was already presented on 13.09.2012. Under the circumstances, we find that the second respondent ought to have condoned the delay and ought to have examined the appeal on merits. It also appears that the attention of the learned Single Judge about the proviso to Section 85(3) of the Finance Act, was not brought. Further the sub-section (2) providing for beginning of the limitation from the date of receipt of the order was also not brought to the notice of the learned Single Judge. Under these circumstances, we find that in absence of any material considered the date from which the limitation period ought to have been taken, it was a fit case to co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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