- (1.) THE present appeal has been filed under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as the 'Act') against the order dated 12 -9 -2011 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as the 'Tribunal'), whereby the appeal has been dismissed as not maintainable. Briefly stated, the facts giving rise to the present appeal are as follows: - - The appellant is engaged in the manufacture of Poly Bags, BOPP Film, Wax coated Paper, PVC Film, Printing Ink, Lay Flat Tubing and Chrome Paper. It is registered under the Central Excise Act, 1944. The Assistant Commissioner (Central Excise), Kanpur passed an order on 14 -6 -2010 confirming a demand of Rs. 4,98,013/ - and also interest payable thereon. He further imposed a penalty of Rs. 4,98,013/ - under Rule 15 of the Cenvat Credit Rules, 2004 with an option that the appellant can pay penalty equivalent to 25% of the duty amount, if paid within 30 days of the communication of the order. The order was received by the appellant on 15 -6 -2010. However, for reasons best known, the appellant did not file any appeal within the stipulated period of 60 days. The appeal was filed on 23 -9 -2010 after expiry of the prescribed period of 60 days as well as the extended period of 30 days given to the Commissioner (Appeals) for condoning the delay. The Commissioner (Appeals) vide order dated 19 -11 -2010 dismissed the appeal on the ground that he has no power to condone the delay beyond 30 days as provided in the proviso to Section 35 of the Act.
(2.) FEELING aggrieved, the appellant filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi. The Tribunal by the impugned order had dismissed the appeal as not maintainable on the ground that the Commissioner (Appeals) had no power to condone the delay beyond a period of 30 days.
(3.) WE have heard Sri Praveen Kumar, learned counsel for the appellant and Sri S.P. Kesarwani, learned Senior Standing Counsel appearing for the Revenue. The counsel for the appellant submitted that the appellant cannot be blamed or made to suffer for no fault of it as it had sent the memo of appeal by courier on 11 -9 -2010 and if for some reasons, the courier had delayed the delivery and delivered it only on 23 -9 -2010, then the appeal should have been treated as having been filed on the date when it was delivered to the courier, i.e. on 11 -9 -2010.;