2016 (4) TMI 1170 - AT - Central Excise

Maintainability of appeal - delay in filing appeal beyond the 90 days of receipt of the Order-in-Original - jurisdiction of first appellate authority - Held that - the first appellate authority has no power to condone the delay beyond the 30 days after the 60 days time which was given for filing the appeal before first appellate authority as per the provisions of Section 35 of Central Excise Act, 1944 - appeal not maintainable and is dismissed.

Summary

Issues: Appeal dismissed for filing belatedly, Request for adjournment dismissed, Commissioner (Appeals) power to condone delay

Issue 1: Appeal dismissed for filing belatedly
The appellant failed to appear during the hearing, and a request for adjournment by an advocate not authorized in the matter was dismissed. The Tribunal proceeded with the Stay Petition and observed that the appeal was dismissed by the first appellate authority for being filed beyond the 90-day limit from the receipt of the Order-in-Original. The Departmental Representative highlighted this aspect, referring to Para 3 of the impugned order. The Tribunal, after perusing the records, concurred with the finding that the appeal was indeed filed beyond the prescribed time limit. The Commissioner (Appeals) had noted the delay in filing the appeal and the limitations under Section 35 of the Central Excise Act, 1944, regarding condonation of delay. As the delay exceeded the permissible limit, the appeal was deemed liable for dismissal.

Issue 2: Request for adjournment dismissed
During the proceedings, no representation was made on behalf of the appellant. A fax seeking adjournment from an advocate not authorized in the matter was produced. However, as there was no Vakalatnama of the said advocate in the case, the application for adjournment was dismissed. Despite the absence of representation, the Tribunal proceeded with the Stay Petition and the appeal's disposal.

Issue 3: Commissioner (Appeals) power to condone delay
The Commissioner (Appeals) had examined the appeal's delay and the provisions under Section 35 of the Central Excise Act, 1944, regarding the condonation of delay. It was noted that the delay exceeded the permissible limit for condonation. The Tribunal concurred with the first appellate authority's findings that the delay was beyond the Commissioner's power to condone. As the appellant did not challenge these factual findings, the Tribunal upheld the decision that the appeal was liable for summary rejection. Consequently, both the appeal and the Stay Petition were dismissed by the Tribunal.