2008 (12) TMI 608 - AT - Central Excise

Summary

Issues:
1. Delay in filing the appeal before the Commissioner (Appeals).
2. Dismissal of the appeal by the Commissioner (Appeals) due to the delay.
3. Lack of condonation of the 3-day delay by the Commissioner (Appeals).
4. Proper procedure for handling delay in filing appeals.
5. Remand of the case for de novo decision by the Commissioner (Appeals).

Analysis:
1. The main issue in this case revolves around the delay of 3 days in filing the appeal before the Commissioner (Appeals) beyond the prescribed period of 60 days. The Order-in-Original was received by the appellants on 21-2-2008, and the appeal was filed on 24-4-2008, leading to the delay.

2. The Commissioner (Appeals) did not condone the 3-day delay and dismissed the appeal on the grounds of the delay in filing. This decision was challenged as the Commissioner had entertained the stay petition and passed a Stay Order dated 23-5-08, indicating inconsistency in handling the matter.

3. The Tribunal found the Commissioner's decision to dismiss the appeal solely based on the delay as incorrect. The Commissioner should have asked the appellants to file an application for condonation of delay, especially since the delay was only for 3 days and the stay petition had been entertained.

4. The Tribunal emphasized the proper procedure for handling such situations, directing the Commissioner (Appeals) to condone the 3-day delay, within his powers, and then proceed to hear the appeal on its merits. The Commissioner should have first dealt with the condonation of delay before dismissing the appeal outright.

5. Consequently, the impugned order by the Commissioner (Appeals) was set aside, and the case was remanded back to him for a de novo decision. The Commissioner was instructed to first condone the delay, hear the appeal on merits, and pass appropriate orders in accordance with the law after giving the appellants a fair hearing. The stay petition was also disposed of in light of the remand for a fresh decision.