2011 (5) TMI 396 - HC - Central Excise

Condonation of delay - In the instant case, admittedly, the delay was more than 30 days and, consequently, there was no power on the Commissioner (Appeals) to condone the delay - whether the learned Tribunal could have condoned the delay? - Tribunal while entertaining the appeal would have no power to condone the delay, considering the fact that the Commissioner (Appeals) has no power to condone the delay - Appeal is dismissed

Summary

Issues: Appeal against delay in filing appeal before Commissioner (Appeals) under Central Excise Act 1944.

In this case, the appellant filed an appeal against the order of the Customs Excise & Service Tax Appellate Tribunal, which dismissed the appeal due to a delay of 42 days in filing the appeal before the Commissioner (Appeals). The appellant argued that there was only a 12 days' delay, but the order was communicated on 10-10-2008, and the appeal was filed on 23-1-2009. The Central Excise Act 1944 allows the Commissioner (Appeals) to entertain an appeal within sixty days from the date of communication of the order, with the power to condone a further delay of 30 days. However, in this case, the delay exceeded 30 days, and the Commissioner (Appeals) had no power to condone the delay.

The High Court analyzed whether the Tribunal could have condoned the delay when the Commissioner (Appeals) had no power to do so. The Court held that since the Commissioner (Appeals) lacked the authority to condone the delay, the Tribunal also had no power to condone the delay. Therefore, the Tribunal's decision to dismiss the appeal due to the delay of 42 days was upheld. The Court concluded that as the Commissioner (Appeals) had no power to condone the delay, the question of the Tribunal condoning the delay did not arise, leading to the dismissal of the appeal.