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TMI Blog2013 (6) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... y on 27.01.2009. Copy of the order has been received by the appellant’s son who was the Managing Partner on 07.02.2009. Appellant’s son has died on 23.06.2009. There was enough time to prefer the appeal. The appellant’s son has participated in the proceedings as the Managing Partner of the firm. The knowledge can be attributed to the appellant also who is a partner. Therefore, it cannot be said the appellant was not aware of the order. Commissioner of Central Excise (Appeals) was justified in dismissing the appeal as barred by time. The appellate Tribunal has rightly confirmed it. - Decided against the assessee. - C.E.A. No. 26 of 2011 - - - Dated:- 31-1-2013 - H Billappa and B S Indrakala, JJ. For the Appellant : Sri K S Ravishan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in ST No.641/2010. The Appellate Tribunal by its order dated 20.10.2010 has dismissed the appeal confirming the order passed by the Commissioner. Therefore, this appeal. 5. Heard the learned counsel for the appellant and also the learned counsel for the respondents. 6. The point that arises for our consideration is; Whether in the facts and circumstances of the case, the Tribunal was justified in holding that there was delay in filing the appeal before the Commissioner of Central Excise (Appeals), Mangalore? 7. The learned counsel for the appellant contended that the appellant s son was the Managing Partner. The original order was passed on 27.01.2009 by the Joint Commissioner of Central Excise, Belgaum. It was received by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the order has been received by the son of the appellant who was the Managing Partner on 07.02.2009. The appellant s son had enough time to prefer the appeal. Appellant s son has participated in the proceedings. The knowledge can be attributed to the appellant also. Therefore, the appeal was not in time. The Tribunal as well as the Commissioner were justified in dismissing the appeal. 9. We have carefully considered the submissions made by the learned counsel for the parties. 10. Section 85 of the Finance Act, 1994, reads as follows: 85. Appeals to the [Commissioner] of Central Excise (Appeals). - (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The knowledge can be attributed to the appellant also who is a partner. Therefore, it cannot be said the appellant was not aware of the order. The explanation offered is unacceptable. In the circumstances, in our considered view, the Commissioner of Central Excise (Appeals) was justified in dismissing the appeal as barred by time. The appellate Tribunal has rightly confirmed it. The appeal should have been preferred within three months. The order has been received on 07.02.2009. The appeal has been preferred on 05.10.2009. The appeal was clearly barred by time. The Commissioner can condone the delay of three months and not beyond that. Therefore, the Commissioner of Central Excise (Appeals) was justified in dismissing the appeal as barred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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