ROOTS MULTICLEAN LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) These appeals filed by the assessee are directed against an order passed by the Commissioner of Central Excise (Appeals). In the impugned order, ld. Commissioner (Appeals) dismissed two appeals of the assessee as time -barred. Appeal Nos. E/667 and 668/2003 before us are against this part of the impugned order. In the remaining part of the impugned order, ld. Commissioner (Appeals) upheld the demands of duty against the assessee in respect of two items of goods manufactured and captively used for the manufacture of final products falling under Heading 96.03 of the CETA Schedule which were chargeable to "Nil" rate of duty.

(2.) Heard both sides. It appears from the records that the lower appellate authority was dealing with eight appeals filed against equal number of Orders -in -Original. The normal period of limitation for an appeal to be filed with the said authority was three months under Section 35(1) of the Central Excise Act as the provision then stood. The appellate authority was empowered to condone delay beyond this period, up to three months, under the proviso to Section 35(1). Appeal No. 360/97 was filed beyond six months (normal period of limitation of 3 months + condonable period of delay of 3 months) from the date of communication of the relevant Order -in -Original and the same was dismissed as time -barred. Appeal No. E/667/2003 before us is against this dismissal. After considering the submissions in this appeal, we note that it is settled law that a Commissioner (Appeals) has no power to condone any delay beyond the maximum period prescribed under the proviso to Sub -section (1) of Section 35 of the Central Excise Act, 1944 and the dismissal of any appeal by the Commissioner (Appeals) on the ground of the appeal having been filed beyond the condonable period of limitation is final. The above appeal No. 360/97 was filed after the period of delay condonable under the proviso to Section 35(1). In the result, appeal No. E/667/2003 is dismissed.

(3.) Appeal No. 140/2000 filed by the assessee before the Commissioner (Appeals) was delayed only by two days beyond the period of limitation of three months from the date of communication of the relevant Order -in -original. The appeal was very much within the condonable period of three months. Ld. Commissioner (Appeals) did not condone this delay for want of application therefor. After hearing both sides and considering the submissions, we have not been able to find fault with the stand taken by the lower appellate authority. Condonation of delay of any appeal under Section 35 is a quasi -judicial function. The proviso to Sub -section (1) of Section 35 empowered the appellate authority to condone delay of up to three months where it was satisfied that the appellant was prevented by sufficient cause from filing the appeal within the prescribed period of limitation. Such satisfaction of the appellate authority could be recorded only upon sufficient reasons having been shown by the appellant for belated filing of the appeal. The reasons must be part of the record. Thus it is implicit in the above provision that the appellant should make an application for condonation of delay of the appeal, wherein he should state the reasons for the delay. No such application was filed by the appellants before the Commissioner (Appeals) along with appeal No. 140/2000. Hence the dismissal of the appeal as time -barred. The appeal has staled the reason for the delay of two days vide Ground No. 1. Ld. Counsel for the appellants also has explained the delay to our satisfaction. Accordingly, we condone the delay. Appeal No. E/668/2003 filed against the order of the Commissioner (Appeals) in the assessee's appeal No. 140/2000 will be considered on merits. The substantive issue involved in this appeal and the rest of the appeals will be addressed now.