TOPS SECURITY LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) AFTER examining the records and hearing both sides we find that the appeal filed by the assessee against an adverse order of the original authority has been dismissed as time -barred by the Commissioner (Appeals). The order of the original authority was received by the party on 26.5.04 and an appeal against the same was filed on 21.3.05. The appellate authority had no power to condone any delay beyond the limit fixed by statute (Section 85 of the Finance Act, 1994). Hence the assessee's appeal was dismissed. Today, Id. Counsel for the appellants submits that they had actually filed an appeal on 18.8.2004 against the order of the original authority but that appeal was defective. It is claimed that they were directed to file fresh appeal and accordingly it was filed on 21.3.2005 before the Commissioner (Appeals). This claim is inconsistent with one ground of the appeal filed with the Commissioner (Appeals). This ground reads as under: There is delay in filing the present appeal. Sir, there was a genuine problem in our branch and we did not have any responsible person to look after the branch and that is why this delay in filing the appeal. There were some more reasonable problems in the branch. We request your goodself to kindly condone the delay in filing appeal and decide the appeal on merits. Apparently, before the lower appellate authority, the appellants expressly acknowledged the delay of their appeal and prayed for its condonation. There is no material on record to show that anything was mentioned before the lower appellate authority with reference to the so -called defective appeal. In the facts and circumstances, we are not in a position to entertain Id. Counsel's request for remand of the matter for verification with reference to the date of filing of the so -called defective appeal.

(2.) THE lower appellate authority had no power to condone any delay beyond the maximum period prescribed under the statute which is a settled position of law vide Delta Impex v. CCE 2004 (173) E.L.T. 449 (Del.) and M.R. Tobacco Pvt. Ltd. v. UOl 2004 (178) E.L.T. 137 (Del.). One of these cases relates to a belated appeal filed with Commissioner (Appeals) under Section 128 of the Customs Act and the other case to a belated appeal filed with Commissioner (Appeals) under Section 35 of the Central Excise Act, 1944. Section 85 of the Finance Act, 1994 (whereunder the appeal in question was filed by the party) expressly provides that Commissioner (Appeals) shall have such powers as conferred on him by the Central Excise Act. This would mean that the Delhi High Court's ruling in the case of M.R. Tobacco Pvt. Ltd. (supra) holding that Commissioner (Appeals) has no power to condone any delay beyond the maximum period prescribed under Section 35 of the Central Excise Act should be squarely applicable to the present case.

(3.) THE impugned order is in accordance with the law as construed by the Hon'ble High Court. Hence this appeal gets dismissed.