SRI BALAJI SERVICE STATION Vs. CESTAT

JUDGEMENT

(1.) After hearing learned counsel for the appellant, we admit the appeal on the following substantial question of law:

(2.) It appears that the appellant before the learned Tribunal agitated that the actual date of receipt of the order appealed against before the Commissioner was 16-7-2012 and if this date is reckoned with, then the appeal is perfectly within time. Learned Tribunal, however, brushed aside this question and held that this point was not agitated before the Commissioner of Appeals.

(3.) We are of the view that if any point involving fact and law are not taken up or could not be taken up before the first forum, it does not necessarily create a bar to take up before the first appellate forum, if such point clinches the issue. According to us, a very vital point has been raised on factual score and this fact, should have been verified. Accordingly, the Tribunal itself could have done it or it could have remanded the matter to the file of the Commissioner (Appeals). According to us, the learned Tribunal has failed to exercise its jurisdiction while passing the order, as indicated above. We, therefore, set aside the order of the learned Tribunal and direct the Commissioner (Appeals) to verify the contention of the appellant that the order sought to be appealed against was received only on 16-7-2012. It would be open for the appellant to place appropriate evidence in support of its contention. This exercise shall be completed within a period of six weeks from the date of production of this order. The appeal is accordingly allowed to the extent indicated above. No order as to costs. As a sequel to the disposal of the appeal, all the interlocutory applications shall stand disposed of.