TMI Blog1999 (12) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 35 of the Central Excise Act. He observed that the appeal has been received in his office on 16-3-1999 and the order in original as admitted in the appeal was received by the appellants on 18-12-1997. Accordingly, appeal has been filed late by 11 months and 28 days. He was not convinced with the reason given by the assessee to condone the delay. He observed that It is appellants responsibility to the the appeal within the time limit and also it was the duty of the appellants to exercise proper control over the receipt/disposal of the important legal matters and to monitor the progress of the disposal. But it appears that they have not shown due diligance in the matter. For their neglect and casual approach, they can not get any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee that Tribunal should streightaway decide the issue on merits without going into time bar issue before the first appellate authority. The decision cited by the appellants Counsel (Supra) is not much helpful to him. The ruling given by the Supreme Court in the aforesaid case was with reference to doctrine of merger. No why it was said that the second appellate authority should look into the matter and deal with the appeal on merits if the appeal is in time before the second appellate authority without going into time bar issue before the first appellate authority. With reference to the cause of action and merger theory the observation made by the Supreme Court in para 20 is also relevant and same is as under :- 20. We are o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reason given by the party was neither convincing nor sufficient to condone the delay as it was rightly held by the Collector (Appeals) in the impugned order. In view of inordinate delay and in the absence of convincing reason the Collector (Appeals) was right in rejecting the appeal as barred by time. In the facts and circumstances, I am of the view that Commissioner (Appeals) was right in rejecting the appeal as barred by time. Further, I hold that the Tribunal is not empowered to go into the merits streightaway without considering whether appeal filed by the party before the first appellate authority was in time or not. The appellant fails on both the issues. In the view I have taken, I am not inclined to interfere with the order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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