GADE TRANSPORT Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE appellant is in appeal against the impugned order wherein the appeal has been dismissed as time -barred by the Commissioner (Appeals). The brief facts of the case are that the adjudication order was passed on 5 -10 -2012 which was sent to the appellant through speed post on 23 -10 -2012 and same was received by the appellant on 27 -10 -2012 and appellant in the stay order preferred an appeal before the Commissioner (Appeals) on 15 -4 -2013. The said appeal has been dismissed by the ld. Commissioner (Appeals) on the ground as per Section 85(3) of the Finance Act, 1994, the appeal is to be filed within 60 days of the communication of the adjudication order and the period can be extended if the reasons for causing the delay be explained satisfactorily. As appeal has been filed beyond the period of 90 days, the appeal is beyond the condonable period. Accordingly, appeal was dismissed. Aggrieved from the said order, appeal is before me.

(2.) IT is contention of the appellant that though the adjudication order was not received by the appellant and on persuasion by the department on recovery proceedings, they came to know the adjudication order was passed, thereafter approached the department. On receiving certified copy of the adjudication order on 14 -2 -2013, they immediately filed the appeal on 15 -4 -2013 which is within 60 days of the communication of the adjudication order. Therefore, impugned order is to be set aside and appeal be allowed. To support this contention, they filed an affidavit and relied on the decision of Wellman Hindustan Ltd. : 2010 (261) E.L.T. 706 : 2011 (23) S.T.R. 193 (Tribunal).

(3.) HEARD both sides.