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2011 (4) TMI 829 - AT - Central ExcisePowers of Commissioner (Appeals) to condone the delay - Held that - The provisions of Section 9 of General Clauses Act, 1897, in terms of which the date of receipt of the order has to be excluded - If that is done, the appeal is filed on 30th day i.e. last day of the expiry of the period, which is within the powers of the Commissioner (Appeals) to condone - See Wimco Limited vs. CCE, Mumbai (2003 (7) TMI 550 - CESTAT, MUMBAI) & Collector Central Excise vs. S.A.I.L. Rourkela Steel Plant (1991 (9) TMI 212 - CEGAT, CALCUTTA) - Admittedly, by applying the provisions of General Clauses Act and the ratio of the Tribunal decisions referred supra, the date of receipt of the impugned is not required to be taken into consideration - Decided in favour of assessee.
Issues:
1. Dismissal of appeal on the ground of limitation by Commissioner (Appeals). Analysis: The judgment by Hon'ble Mrs. Archana Wadhwa, Member (Judicial) of the Appellate Tribunal CESTAT, AHEMDABAD, addressed the issue of dismissal of an appeal on the ground of limitation by the Commissioner (Appeals). The appellant had filed an appeal after the impugned order was received on 09.7.2007, with the normal period to file the appeal expiring on 08.11.2007. The appeal, however, was filed on 07.12.2007. The Commissioner (Appeals) had observed that since the appeal was filed on the 31st day, he did not have the power to condone the delay. The appellant argued that as per the General Clauses Act, the date of receipt of the order should be excluded, making the appeal filed on the 30th day, which falls within the condonable period of 30 days as per Section 35B. The appellate authority had not considered the application of the General Clauses Act and the Tribunal decisions cited by the appellant. The appellant had not raised this legal issue before the Commissioner (Appeals) but requested the impugned order to be set aside and the matter to be remanded for fresh consideration. The Member (Judicial) acknowledged the appellant's argument, stating that by applying the General Clauses Act and the Tribunal decisions, the date of receipt of the order should not be considered. Consequently, the Member (Judicial) set aside the impugned order and remanded the matter to the appellate authority for fresh consideration, disposing of the stay petition and appeal accordingly. In conclusion, the judgment highlighted the importance of considering legal provisions such as the General Clauses Act and relevant case law in determining the timeliness of filing appeals, emphasizing the need for proper legal arguments to be raised at each stage of the appeal process to ensure a fair consideration of all relevant factors.
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