2006 (1) TMI 505 - AT - Central Excise

Summary

Issues:
1. Appeal filed at the wrong place leading to delay in filing a fresh appeal.
2. Competency of Commissioner (Appeals) to condone the delay under Section 35 of the Central Excise Act.
3. Determination of delay in filing the appeal by the assessee.

Analysis:
1. The appeal in question was filed against an order dismissing the assessee's appeal as time-barred due to filing at the wrong place. The original appeal was filed within the prescribed period but at the wrong office, leading to a delay in transferring the papers to the correct jurisdiction. Subsequently, a fresh appeal was filed with a significant delay of 846 days. The Commissioner (Appeals) found no power to condone this delay beyond 90 days, resulting in the impugned order.

2. The Tribunal noted that the party's error in pursuing the appellate remedy led to the delay in filing the fresh appeal. Despite the delay, the Tribunal considered the appellant's conduct as bona fide and careful in pursuing their appeal. It was emphasized that the date of filing the original appeal should be considered to determine the delay, especially when the fact of filing was not contested by the Department. The Tribunal set aside the impugned order and directed the Commissioner (Appeals) to review the appeal on its merits, subject to compliance with Section 35F of the Central Excise Act.

3. Ultimately, the Tribunal allowed the appeal by way of remand, highlighting the importance of considering the circumstances and the party's conduct in determining the delay in filing the appeal. The decision focused on ensuring that the assessee was not prejudiced due to technicalities and emphasized the need to assess the appeal based on the original filing date rather than the date of the duplicate appeal.