2006 (6) TMI 284

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..... DR, for the Respondent. [Order per : Justice R.K. Abichandani, President (for the bench)]. -  The applicant challenges the order of the Commisioner (Appeals), rejecting the application for condonation of delay after re-examining it pursuant to the directions given by the learned Single Judge of the High Court and finding that the Commisioner (Appeals) had no power under the provisions of Se .....

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..... d Counsel relied upon the directions contained in the High Court order dated 29-7-2005 on the Commisioner (Appeals), "to hear and decide the application for condonation of delay filed by the State Government on merits." 3. The learned authorised representative for the department, submits that the Commisioner (Appeals) has obeyed the direction of the High Court by reconsidering the applicatio .....

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..... abad for deciding the application for condonation of delay filed by the State Government on merits. He could not have examined the legality of such direction even in the context of the specified statutory provisions containing the proviso to sub section (1) to Section 35 of the Central Excise Act, 1944. We have, however, noticed that a Division Bench judgment of the same High Court in Doaba Rollin .....

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..... mmisioner (Appeals) that the Commissioner (Appeals) had no power to condone the delay beyond the further period of 30 days from the expiry of the time within which the appeal ought to have been filed. The Central Excise Act, 1944 is a complete code and the provisions of Section 35 clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended pe .....

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..... of the jurisdictional High Court, he, was required to decide the application for condonation of delay on merits. The appeal raises highly debatable issue as to whether a direction could be given to the Commissioner (Appeals) to exercise power of condoning the delay beyond the statutorily conferred powers. We, therefore waive the, pre-deposit of the amount of duty and penalty payable under the ord .....

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