2004 (97) ECC 66 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Bangalore

Dr. S.L. Peeran, Member (J) and Shri K.C. Mamgain, Member (T)

United Canning Company

Versus

Commissioner of Central Excise, Guntur

Appeal No. E/St/386/04, E/698/04

[Arising out of Order-in-Appeal No. 14/2004 dated 12.1.2004 passed by the Commissioner of Customs & Central Excise (Appeals), Guntur]

Stay Order No. 935/2004
Final Order No. 1480/2004, dated 8.9.2004, Certified on 17.9.2004

Appeal

Limitation -- Appeal is not maintainable for the reason that the Commissioner (Appeals)'s order dismissing the appeal on time bar is a correct order as he has no power to condone the delay beyond the statutory period.

Appeal dismissed

PRESENT :

None for the appellant.

Shri R.V. Ramakrishnappa, JDR for the respondent.

Per : Dr S.L. Peeran

The stay application and appeal lies on a short compass and hence they are taken up together for disposal as per law. By Order-in-Appeal No. 14/04 dated 12.1.04, the Commissioner (Appeals) has dismissed the appeal on time bar on the ground that the appeal has been presented beyond the statutory period as per proviso to Section 35 of Central Excise, Act, inasmuch as it as been filed beyond 90 days and that the Commissioner has no powers to condone the delay. None have appeared for the appellants despite notice being served on them. The learned SDR submits that the appeal is not maintainable for the reason that the Commissioner (Appeals) order dismissing the appeal on time bar is a correct order as he has no power to condone the delay beyond the statutory period. We have considered the submissions made and the findings recorded by the Commissioner (Appeals). The Commissioner (Appeals) has power to condone beyond 60 days up to 30 days only. As the appeal has been filed beyond 90 days, in terms of Section 35 F, the appeal is not maintainable before the Commissioner (Appeals). The order of dismissal by the Commissioner (Appeals) is just and proper in terms of law. There is no merit in this appeal. Hence, the same is dismissed as not maintainable.

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