M/S. NAGARJUNA AGRICHEM LIMITED Vs. COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX (APPEALS) VISAKHAPATNAM

JUDGEMENT

(1.) THIS application seeks waiver of pre -deposit and stay of recovery in respect of an amount of interest on duty demanded by the lower authorities. There is no representation for the appellants despite notice, nor any request for adjournment. After examining the records and hearing the learned Superintendent (AR), I am inclined to dispose of the appeal itself finally. Therefore, after dispensing with pre -deposit, I take up the appeal. The impugned order passed by the Commissioner (Appeals) is not one on merits. It is an order dismissing as time -barred an appeal filed by the assessee against an adverse order passed by the original authority. The order -in -original was received by the assessee on 19.8.2009 and the appeal against that order was filed on 1.10.2010. The appellate authority noted that the delay of the appeal was far beyond even the condonable period of delay of 30 days prescribed under the proviso to sub -section (1) of Section 35 of the Central Excise Act and, accordingly, he rejected the appeal on the ground of delay. As rightly submitted by the learned Superintendent (AR), it is settled law that an appellate Commissioner of Customs, Central Excise or Service Tax has no power to condone any delay beyond the condonable period of delay prescribed in the relevant statute. It was held by the Supreme Court in the case of Singh Enterprises vs. CCE: : 2008 (221) E.L.T. 163 (S.C.) that an order of Commissioner (Appeals) dismissing an appeal on the ground that the appeal was filed beyond condonable period of delay was not liable to be interfered with by the Tribunal or a High Court. Even prior to the Supreme Court's judgment, the Delhi High Court had held to the same effect in the case of Raja Mechanical Company Pvt. Ltd. vs. CCE: : 2002 (144) E.L.T. 36 (Del.). Respectfully following the above ruling, I reject this appeal along with the stay application.