TMI Blog2017 (7) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal on the ground of limitation and we hold that the appeal was filed within the period of limitation. We find it fit and proper that the issue on merit regarding correct classification of the impugned product should be examined and decided afresh by the Jurisdictional Original Authority to whom we are remanding the matter. It is made clear that the appellants should be given adequate opportunity to submit their side of the case alongwith whatever supporting evidence they want to place - appeal allowed by way of remand. - Excise Appeal No.1976 of 2011 - A/53551/2017-EX[DB] - Dated:- 26-5-2017 - Shri Anil Choudhary, Member (Judicial) And Shri B. Ravichandran, Member (Technical) Shri Rajesh Rawal, Advocate for the appellant. Ms. Suchitra Sharma, Authorized Representative (Jt. CDR) for the Respondent. ORDER Per: Anil Choudhary This appeal has been preferred by the appellant/assessee against order-in-appeal dated 6 th May 2011 by the learned Commissioner (Appeals), who have dismissed the appeal on limitation and so far the merits are concerned, have observed that that is lack of material on record to decide the same. 2. The facts in b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither supplied to appellant alongwith above letter nor the same has ever served upon the appellant. 14/09/1983 Against the aforesaid letter dated 18/08/1983, appellant preferred writ petition before the Hon ble Calcutta High Court which was registered as Writ Petition No. 8896 (W) of 1983. The said writ petition was entertained by the Hon ble High Court. 20/09/1983 On 20/09/1983 interim order was passed by the Hon ble Single Judge of the Calcutta High Court directing the appellant to pay 50% of the disputed duty in cash and for the balance duty thereof execute bond and also execute bank guarantee for disputed amount of excise duty. 19/04/2002 The aforesaid writ petition was allowed by the Hon ble Single Judge of the Hon ble Calcutta High Court while holding as follows : Accordingly I allow the writ petition and make the rule absolute. I direct the respondents to return the bank guarantee and bond and the payment which has been made by the petitioner in terms of the interim order, shall be refunded with interest @ 10% per annum from the date of deposit till payment. No order as to cost . 30/08/2002 In pursuance to the aforesaid decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sthan High Court (certified copy whereof dated 29/05/2009 was placed on record) appellant had filed the said appeal before the learned Appellate Authority. Further it was submitted that the issue at hand stands settled by various decisions rendered, amongst others, by this Tribunal which have been duly approved by the Hon ble Apex court. 08/09/2010 The learned Appellate Authority/Respondent granted personal hearing which was attended upon and the detailed submissions were made in support of the appeal. It would be relevant to mention here that no objection whatsoever was raised on the aspect that the appeal has been filed against the letter dated 18/08/1983 before the learned Appellate Authority only on 24/07/2009. Accordingly the submissions were made on behalf of appellant on the issue at hand while reiterating, besides others, submissions made in the appeal memo. 31.03.2011/16.05.2011 After lapse of months together, the learned Commissioner (Appeals) vide impugned order dated 31/03/2011 rejected the appeal of the appellant on merits as well as on limitation without appreciating the submissions made on behalf of appellant. Hence the present appeal . 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs from the date of communication to him of such decision or order. On the principles contained in Section 14 of the Limitation Act the time taken in prosecuting an abortive proceeding would have to be excluded as the appellant was prosecuting bona fide with due diligence the appeal before CEGAT, which was allowed in its favour by CEGAT on 23-61998. The Department preferred an appeal against the said order sometime in the year 2000, which appeal was decided in their favour by this Court only on 12-3-2003 by which CEGAT s order was set aside on the ground that CEGAT had no jurisdiction to entertain such appeal. The time taken from 12-3-2003 to 23-5-2003, on which date the present appeal was filed before the Commissioner (Appeals) would be within the period of 180 days provided by the pre-amended Section 128, when added to the time taken between 3-4-1992 and 22-6-1992. The amended Section 128 has now reduced this period, with effect from 2001, to 60 days plus 30 days, which is 90 days. The order that is challenged in the present case was passed before 2001. The right of appeal within a period of 180 days (which includes the discretionary period of 90 days) from the date of the said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the learned Commissioner (Appeals) have erred in dismissing the appeal on the ground of limitation and we hold that the appeal was filed within the period of limitation. Accordingly we set aside the order of the learned Commissioner (Appeals) and allow the appeal by way of remand. Per. B. Ravichandran :- The learned Counsel for the appellant have also strongly pleaded on the merits of the case. He submitted that the product, in question, was along cleared within classification under tariff item 18 III (i) of the erstwhile Central Excise Tariff. The change in the classification as ordered by the Assistant Commissioner communicated in the impugned letter of the Superintendent does not given any reason for change of the classification. It is the case of the appellant that the onus of correct classification is with the Department. If any change is to be ordered, the same has to be with reasons recorded and communicated to the appellant. He submitted that the fact of communication through the Superintendent, but the appellant did not receive the impugned classification list from the Department. 2. Contending on the correct classification, the learned Counsel s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
