- (1.) The Court :-The appeal is admitted upon hearing learned Advocates for the parties on the following points, which in our opinion involve substantial questions of law:- i) Whether it was proper for the Tribunal to dismiss the appeal of the appellant on the ground of delay without considering the fact that the appellant was pursuing remedy before the Appellate authority of the first instance ? ii) Whether order of the Tribunal is perverse or not ?
(2.) The appellant before us was issued notice to show case and demand on the allegation of evasion of service tax. The adjudicating authority decided the matter against the appellant and sustained the demand. Before the Appellate authority, dispute arose as to whether the appeal was instituted within the prescribed time or not. The appellant claims to have received the order of the adjudicating authority dated 30th September, 2009 on 8th October, 2009. The appellant preferred an appeal before the First Appellate authority, i. e., The Commissioner of Central Excise on 8th January, 2010, which the appellant contends was within the prescribed timeframe of three months as specified in Section 85(3) of the Finance Act, 1994. The First Appellate authority, however, dismissed the appeal on the ground of being time barred, not being supported by any plea for condonation of delay. The appellant's case is that no notice was given to it and the appeal was dismissed ex parte on 16th February, 2010. Thereafter, an application for modification/recalling/variation of the order of the First Appellate authority was filed before the said authority on 23rd February, 2010. A decision, however, was given by the First Appellate authority on 5th April, 2013 in substance rejecting the application for modification on the ground that under the provisions of Section 35G of the Central Excise Act, 1994, the said authority was not vested with the power to modify its own order. The next Appellate forum was the Customs Excise and Service Tax Appellant's Tribunal and the appellant preferred an appeal before the Tribunal on 22nd April, 2013. The Tribunal, however, dismissed the appeal on the ground of delay. It is this order which is under challenge before us.
(3.) So far as the order under appeal is concerned, we are of the view that since for about three years the appellant was pursuing relief from the First Appellate authority, that factor ought to have had been considered by the Tribunal while considering the appeal. Mr. Majumder, learned senior advocate appearing for the appellant submits that it was within the power and jurisdiction of the Tribunal to condone the delay in terms of Section 86(5) of the Finance Act, 1994. We find that the appellant's case on the merit was not heard at the appellate stage because the First Appellate authority also passed its order ex parte. No material was produced before us from the revenue to demonstrate that the First Appellate authority had heard the appeal after issuing notice of the hearing to the appellant.;