- (1.) HEARD the learned counsel appearing for the parties. Leave granted.
(2.) A challenge is made in this appeal to the judgment and order dated 4/9/2009, passed by the Division Bench of the Gauhati High Court in WA No. 216 of 2009, holding that the power to condone delay is vested only for a maximum period of 30 days in terms of the provisions of S. 35 of the Central Excise Act, 1944. The appellant herein challenged the order dated 9/7/2003 passed by the Deputy Commissioner, Central Excise, Gauhati by filing an appeal before the Commissioner (Appeals). The said appeal was filed on 6/10/2004 and by an order dated 15/10/2004, the Commissioner (Appeals) rejected the application filed by the petitioner seeking condonation of delay on the ground that the appeal is barred under the provisions of S. 35 of the Central Excise Act.
(3.) THE aforesaid order of the Commissioner (Appeals) was challenged before the learned Single Judge of the Gauhati High Court. By an order dated 3/6/2008, the learned Single Judge held that sufficient ground is not made out for condonation of delay, even assuming that such a power is vested on the Commissioner (Appeals) to condone delay beyond a period of 30 days. The said order of the learned Single Judge was challenged before the Division Bench of the High Court, which dismissed the appeal holding that the Commissioner (Appeals) did not have the power and jurisdiction to condone such delay beyond a maximum period of 30 days after expiry of the earlier 60 days as contemplated in the said provisions.;