INDICA LABORATORIES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE common question raised in these appeals is whether Commissioner of Central Excise (Appeals) was justified in dismissing both the appeals on the ground of delay, holding that he has no power to condone delay if the appeals are filed beyond the period prescribed under the Central Excise Act, 1944.

(2.) APPELLANTS preferred appeals against order of the Deputy Commissioner of Central Excise, Ahmedabad -II, before the Commissioner (Appeals) on 18.2.2008. Impugned orders were received by the appellants on 17.8.2007. Under the provisions of Section 35 of the Central Excise Act, 1944, appeals against any order passed by the Central Excise Officer lower in rank than a Commissioner of Central Excise is required to be filed before the Commissioner (Appeals) within sixty days from the date of communication of such order. Commissioner (Appeals) however, if satisfied, can condone delay of further thirty days period in filing the appeal. Appeals were required to be filed by 16.10.2008, but appeals were filed only on 18.2.2008, resulting delay of 124 days over the stipulated period. Under the provisions of Section 35 of the Central Excise Act, 1944, Commissioner (Appeals) is not empowered to condone delay beyond further thirty days. In view of the above situation, both appeals were dismissed. Matter was carried before the Tribunal. Tribunal also dismissed both the appeals, against which these appeals have been preferred.

(3.) THE issue raised in this case is no more res -integra. Power of the Commissioner to condone delay under the provisions of Central Excise Act, came to be considered by the apex Court in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur . The apex Court held as follows: