2010 (11) TMI 830 - AT - Central Excise

Delay in filing appeal Held that - before the Commissioner (Appeals) if the appeal is not filed within the period of 90 days from the date of communication, such appeal cannot be entertained by the Commissioner (Appeals) nor the Commissioner (Appeals) can condone the delay beyond 90 days. It is also settled law that the Appellate Authority also cannot condone the delay in that regard, appeal dismissed

Summary

Issues involved:
1. Timeliness of filing the appeal before the Commissioner (Appeals) within the prescribed period.

Analysis:
The appeal before the Appellate Tribunal arose from an order passed by the Commissioner (Appeals) dismissing the appeal filed by the appellants as it was beyond the extended period of thirty days after the expiry of the limitation period for filing the appeal. The appellants were engaged in manufacturing various glass products and were availing Cenvat Credit. The Assistant Commissioner confirmed the demand for Central Excise duty, interest, and penalty. The appeal was dismissed for being filed beyond 90 days from the date of the intimation of the order by the Adjudicating Authority, leading to the present appeal.

The facts presented by the department indicated that the order was dispatched to the appellants on 22nd December 2008, returned due to the factory being closed, and eventually served on 25th February 2009. The appellants claimed to have received the order on 4th May 2009, justifying the appeal filed on 29th June 2009 as within the limitation period. The Deputy Commissioner confirmed the service date as 25th February 2009, rejecting the appellants' claim of receiving the order in May. The appellants' argument relied on an affidavit and documents, but the Commissioner (Appeals) found them insufficient to prove the actual receipt date.

The Tribunal emphasized the necessity of concrete evidence to establish the receipt date of the order. The affidavit by the Deputy General Manager lacked crucial details such as the recipient's name or supporting documents, weakening its credibility. Conversely, the Superintendent's letter and diary entry from 25th February 2009, documenting the service of the order, were considered reliable and maintained in the regular course of duty. The Tribunal accepted this official record as conclusive evidence of the order's service date, leading to the dismissal of the appeal.

Ultimately, the Tribunal upheld the Commissioner (Appeals) decision, emphasizing the importance of filing appeals within the prescribed period. Since the appeal was filed beyond 90 days from the date of communication, it could not be entertained or condoned. The settled law dictated that the Appellate Authority cannot condone delays beyond the specified period, resulting in the dismissal of the appeal.

In conclusion, the Tribunal found no grounds for interference in the impugned order, and the appeal was dismissed due to the untimely filing, as established by the official records of the order's service date.