2011 (9) TMI 702 - AT - Central Excise

Period of Limitation - Appeal filed through courier - Acknowledgment shows received by Assistant Commissioner of Excise and Custom - Appellant not made any effort to file the appeal before the Commissioner (Appeals) within the period of limitation - Held that - Commissioner (Appeals) has no power to condone the delay which is beyond the period prescribed under the Act. Decided against assessee.

Summary

Issues:
1. Appeal for waiver of pre-deposit of duty, interest, and penalty dismissed as time-barred.
2. Dispute over the delay in filing the appeal.
3. Interpretation of acknowledgment receipt regarding the delivery of appeal papers.
4. Appellant's reliance on previous Tribunal decisions.
5. Commissioner's power to condone delay in filing appeals.

Analysis:
The appellant filed an application for waiver of pre-deposit of duty, interest, and penalty, which was dismissed by the Commissioner (Appeals) as time-barred due to a delay of one year. The appellant contended that the appeal was filed within the normal period of limitation through courier, but the Commissioner (Appeals) claimed not to have received it. The appellant relied on previous Tribunal decisions to support their case (Issue 1).

The dispute centered around the acknowledgment receipt showing the delivery of appeal papers to the office of the Assistant Commissioner of Central Excise, Aurangabad. The Revenue argued that despite the acknowledgment, the appellant made no effort to file the appeal before the Commissioner (Appeals) within the limitation period, indicating a lack of bona fide on their part (Issue 2).

The appellant maintained that the appeal was filed within the normal period of limitation, as evidenced by the acknowledgment receipt. However, the Tribunal found that the appellant did not attempt to retrieve the papers or file the appeal before the Commissioner (Appeals) within the prescribed period. The Tribunal distinguished the present case from previous decisions cited by the appellant, emphasizing the need for timely action in filing appeals (Issue 3).

Regarding the Commissioner's power to condone delays in filing appeals, it was noted that under Section 35 of the Central Excise Act, the Commissioner could condone a delay of up to 30 days upon showing sufficient cause. However, the Commissioner (Appeals) had no authority to condone delays beyond the statutory limit. As the appeal was received beyond the condonable period, the Tribunal found no merit in the appeal and dismissed it, along with the stay petition (Issue 4 & 5).