- (1.) THE appellant is in appeal against the order of the learned Customs Excise & Service Tax Appellate Tribunal dated 28 -6 -2010, wherein the Tribunal has held that there was 42 days' delay in preferring the appeal before the Commissioner (Appeals), and that the power of the Commissioner (Appeals) to condone the delay was to the extent of 30 days and, accordingly, dismissed the appeal. It is this order which is under challenge in this appeal.
(2.) ON behalf of the appellant, it is submitted that there was only 12 days' delay in preferring the appeal before the Commissioner (Appeals) against the order of the Assistant Commissioner, Central Excise Division, Varanasi dated 26 -9 -2008. We find that the order dated 26 -9 -2008 was communicated to the appellant on 10 -10 -2008 and the appeal was filed on 23 -1 -2009. Section 35 of the Central Excise Act 1944 confers power on the Commissioner (Appeals) to entertain an appeal within sixty days from the date of communication of the order. Further power has been conferred on the Commissioner (Appeals) under the proviso to sub -section (1) of Section 35, to condone the delay of further period of 30 days. In the instant case, admittedly, the delay was more than 30 days and, consequently, there was no power on the Commissioner (Appeals) to condone the delay.
(3.) THE question is, whether the learned Tribunal could have condoned the delay? In our opinion, once the Commissioner (Appeals) has no power to condone the delay, the question of condoning the delay by the Tribunal would not arise. The Tribunal while entertaining the appeal would have no power to condone the delay, considering the fact that the Commissioner (Appeals) has no power to condone the delay.;