G.M., CHICKMAGALAUR TELECOM Vs. CCE

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with predeposit, we take up the appeal for final disposal.

(2.) THE appeal is against an order passed by Id. Commissioner (Appeals) dismissing as time -barred an appeal filed by the assessee. The assessee's appeal before the lower appellate authority was delayed by two years and two months. Ld. Commissioner (Appeals) dismissed it after noting that he had no power to condone such delay. Hence the present appeal.

(3.) LD . Consultant for the appellant submits that, though the above delay was satisfactorily explained, Id. Commissioner (Appeals) did not exercise his jurisdiction. The delay was occasioned by organizational changes, as also computerisation of the appellants' functioning. Moreover, the appellant had strong case on merits. In the circumstances, according to Id. Consultant, the delay should have been condoned for ends of justice. It is submitted by Id. SDR that such circumstances are irrelevant inasmuch as Id. Commissioner (Appeals) had no power to condone any delay beyond three months from the normal period of limitation under Section 85(3) of the Finance Act, 1994. He has also relied on the Delhi High Court's judgment in M.R. Tobacco Pvt. Ltd. v. UOI 2004 (178) E.L.T 137 (Delhi), wherein the Commissioner (Appeals) was held to have no power to condone any delay of appeal beyond the limit prescribed under Section 35 of the Central Excise Act.