R.B.Misra, J. - (1.) Heard Sri Bharat Ji Agrawal along with Sri Pankaj Bhatia, learned Counsel for the petitioners and Sri Subodh Kumar, learned Counsel for the respondents.
(2.) Brief facts necessary for adjudication of the present writ petition are that the petitioner is a company duly registered under the Companies Act and engaged in the manufacturing of soft drinks falling under Chapter XXII of the Central Excise Tariff Act, 1985. The respondent No. 2 i.e. Additional Commissioner (Central Excise) issued a notice on 2-6-1999 demanding excise duty along with interest and mandatory penalty and intended to levy a penalty under Rule 209A of the Central Excise Rules, 1944 on the petitioners nos. 2, 3 and 4. After hearing the petitioners, the respondent No. 2 passed an order on 26-12-2001 thereby imposing duty of Rs. 14,02,900/along with interest as provided under Section 11AB of the Central Excise Act in short called 'Act' 1944 and further penalty amounting to Rs. 14,02,900/- purported to be under Section 11AC of the 'Act' read with Rule 173Q of the said Rules.
(3.) Being aggrieved against the above order, the petitioners preferred an appeal Under Section 35 of the 'Act' along with an application Under Section 35F of the 'Act' and also an application for condonation of delay. It appears that the order was served on 3-1-2002 but as the petitioner No. 3 was undergoing medical treatment, therefore, he filed the appeal with delay of 99 days. The Commissioner (Appeals) by its order dated 26-6-2002 dismissed the appeal as time barred Under Section 35(G) of the 'Act' saying that the Commissioner is empowered to condone the delay of 35 days only under Section 35 of 'Act' and the appeal since have been filed by delay of 99 days therefore, he has no power to condone the delay, therefore, the dismissal of appeal.;