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2024 (3) TMI 796 - CESTAT NEW DELHIMaintainability of appeal - Time limitation - appeal dismissed for the reason that though the appeal was filed after the expiry of two months from the date of receipt of the order, the appellant did not file any delay condonation application to explain the delay in filing the appeal - HELD THAT:- Section 85 (3A) of the Finance Act provides that an appeal shall be presented before the Commissioner (Appeals) within two months from the date of receipt of the decision or order of the adjudicating authority, but the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. In the present case, it is not in dispute that the appeal was filed before the Commissioner (Appeals) after the expiry of two months but before the expiry of the further period of one month. It is correct that the appeal has to be filed within two months from the date of receipt of the order, but the Commissioner (Appeals) does have the power to condone the delay of a period of further month provided he is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the stipulated time - In the facts and circumstances of the case, when the covering letter that was sent to the appellant enclosing the order passed by the Assistant Commissioner mentions that the appeal could be filed within three months, it is clearly a case where the delay, even if an application had not been filed, should have been condoned. In such circumstances, it is not possible to sustain the view taken by the Commissioner (Appeals) that in the absence of a delay condonation application, the appeal was liable to be dismissed - the matter is remitted to the Commissioner (Appeals) to decide the appeal on merits. Appeal allowed.
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