TMI Blog2015 (4) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... one delay upto 30 days in filing appeal. There is no provision in section 35B ibid to condone delay exceeding 30 days. Hon'ble Allahabad High Court in the case of M/s India Rolling Mills (P) Ltd. Vs. CESTAT, New Delhi [2004 (2) TMI 77 - HIGH COURT OF JUDICATURE AT ALLAHABAD] has held that the Commissioner (Appeals) cannot. condone delay in filing appeals beyond 30 days. Government also notes that Hon'ble Supreme Court in the case of Singh Enterprises Vs. CCE Jamshedpur [2007 (12) TMI 11 - SUPREME COURT OF INDIA] has also held that Commissioner (Appeals) is empowered to condone delay upto 30 days and has no power to allow appeal to be presented beyond the delay of 30 days. - appeal filed after a delay of 45 days was not maintainable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oice, the supplicate copy of excise invoice was not submitted with the rebate claim; details of ARE 1 were not shown on the Shipping Bill; the quantity of goods was shown as 5895 kgs in the ARE 1 No 66/05-06 and the Central Excise invoice No. 96 both dated 13.02.2006 whereas quantity of 8448 kgs net was shown in the Shipping Bill, Bill of Lading and Mate receipt; the weight was shown as 5760 kgs net in the commercial invoice cum packing list and hence it was not clear to which goods were exported by the claimants since the weight and description differed on every document; the description of the exempted goods did not appear in the commercial invoice and hence that the exempted goods have also been exported, is not established. 3. Bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderance of evidence clearly seems to indicate that the assessee had received the order-in-original on 14.03.2008 and have retracted the submission only to gain undue advantage in the instant case. Commissioner (Appeals), Central Excise, Mumbai-Zone-II has erred in condoning the delay of 45 days in filing of the appeal. The discussions above clearly indicate that there was a delay in 45 days in filing of the appeal. The assessee themselves had filed an application for condonation of delay of 45 days. The Commissioner (Appeals) is empowered to condone the delay upto 30 days and has no power to condone any delay above 30 days. 4.2 Commissioner (Appeals) has erred in holding that the commercial invoice No. 826 dated 08.02.2006 showed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35C (1)(a), the service of the order is has to be made by register post with acknowledgement due to a person for whom it is intended. Sending the order, by mere registered post is not the compliance of the said condition. In the taxing matters like customs and central excise, there would be no scope for the presumption, as it would deprive the right of the assessee to agitate the matter. Therefore cross objectionist submit that the revenue has failed to produce any proof of service though three Months time was granted to them by the Commissioner (Appeals) for the same. In the absence of the said proof, Commissioner (A) was legally right to decide the' appeal condoning the delay of 24 days, Hence the order of Commissioner (A) legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reverse of the said ARE-1. The endorsement also shows the M.R. No.44510 dated 4.3.2006. Therefore, it was undisputed that the goods covered in the ARE-1 No. 66/05-06 dated 13.2.2006 was exported. 6. Personal hearing in the case was held on 26.11.13. Shri Ajudia Jayeshkumar, Director of the company appeared for hearing or behalf of the respondent and stated that order-in-appeal being legal and proper may be upheld. Nobody attended hearing on behalf of applicant department. 7. Government has carefully gone through the relevant case records and perused the impugned orders-in-original and orders-in-appeal. 8. Government observes that the original authority rejected the rebate claim of the respondent mainly on' the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals). The respondent has also not. successfully rebutted this factual position, as they have not mentioned anything about said facts. Therefore, Government finds that the appeal was filed after a delay-of 45 days before Commissioner (Appeals). 10. Government notes that appeal was filed before Commissioner (Appeals) after a delay of 45 days and the said fact is not disputed by applicant. As per provisions of section 35B of Central Excise Act, 1944, Commissioner (Appeals) is empowered to condone delay upto 30 days in filing appeal. There is no provision in section 35B ibid to condone delay exceeding 30 days. Hon'ble Allahabad High Court in the case of M/s India Rolling Mills (P) Ltd. Vs. CESTAT, New Delhi .2004 (169) ELT 258 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
