22.04.2025 Item No.2 Ct. No.01 RP/SM MAT 539 of 2025 with IA NO: CAN/1/2025 & IA NO: CAN/2/2025 M/S BEST US AND P CONSULTANTS PVT. LTD. VS. UNION OF INDIA AND ORS. Mr. A.K. Upadhyay, Adv. Ms. Mahasmriti Ghosh, Adv. …For the Appellant Mr. Aryak Dutt, Adv. Mr. Amal Kr. Datta, Adv. …For the Respondent No.1/U.O.I. Mr. Bhaskar Prosad Banerjee, Adv. Mr. Kaustav Kanti Maity, Adv. …For the Respondent/CGST & Central Excise IA NO: CAN/2/2025 1. This is an application for condoning the delay of 29 days in filing the appeal. We have perused the averments set out in the affidavit and we find sufficient cause for not preferring the appeal within the period of limitation. Hence, the application is allowed and delay in filing the appeal is condoned. MAT 539 of 2025 with IA NO: CAN/1/2025 2. This intra-court appeal filed by the writ petitioner is directed against the order dated 22nd January, 2025, passed in WPA 29228 of 2024. The said writ petition 2 was dismissed by the learned Single Bench on the ground that the impugned order is an appealable order under section 85 of the Finance Act, 1994. Aggrieved by such order the appellant has filed the present appeal. 3. We have elaborately heard the learned advocates appearing for the parties. The contention of the learned advocate appearing for the appellant is that the order of adjudication passed against the appellant was an ex-parte order and, therefore, the appellant had filed the writ petition seeking for an opportunity to go before the adjudicating authority to put forth their contention. On going through the impugned order we find that initially notices were issued in the year 2019 by letters dated 3.9.2019 and 4.11.2019 in which the appellant did not respond. Subsequently, when the matter was taken up for adjudication, hearing notice was issued on 30.11.2022, 30.1.2023 and 1.2.2023. Paragraph 8 of the adjudication order dated 10.2.2023 has recorded that the appellant did not pray for any adjournment of the proceedings or extension of time to submit their reply in defence. Although several opportunities were given but they failed to avail any of those opportunities and, therefore, the respondent- authority proceeded to adjudicate the matter on merits and affirmed the proposal in the show-cause 3 notice-cum-demand dated 19.12.2000. The order impugned in the writ petition is an adjudication order and the appellant has challenged the order not only on the ground that the order is an ex-parte order but also on the merits of the matter. Therefore, in order to examine the correctness of the order of adjudication disputed questions on fact are required to be gone into, more particularly, when the stand taken by the appellant is that the particular service was an exempted service. Therefore, we are of the view that the appellant should avail the alternate remedy provided under section 85 of the Finance Act and should not bypass the same. It is well-open to the appellant to raise all contentions before the appellate authority, namely, the Commissioner (Appeals) after complying with the pre-deposit condition and the appellate authority is entitled to appreciate and re-appreciate the factual decision and take a decision on merits. Therefore, we are of the opinion that the learned Single Bench rightly relegated the appellant to avail the alternate remedy. However, if the appellant files an appeal at this juncture the same should be barred by limitation and should be dismissed. However, since the writ petition was filed challenging the adjudication order and the matter was pending and finally disposed of by the impugned order, we deem it appropriate to 4 grant a reasonable time to the appellant to file an appeal before the first appellate authority. Accordingly, while affirming the order passed by the learned Single Bench, the appellant is granted liberty to file an appeal before the appellate authority within the period of 60 days from the date of receipt of server copy of the order. If such appeal is filed the appellate authority shall entertain the appeal without referring to limitation subject to compliance of the hundred per cent condition and the appellate authority shall afford an opportunity of hearing to the appellant and dispose of the appeal on merits and in accordance with law. 4. Accordingly, the appeal along with the application is dismissed. [T.S. SIVAGNANAM] CHIEF JUSTICE [CHAITALI CHATTERJEE (DAS), J.]