ORDER
Gowri Shankar, Member (T)
1. The Commissioner (Appeals) has dismissed the appeal on the ground of limitation.
2. The order of the Assistant Commissioner, Nasik, impugned in the appeal to the Commissioner (Appeals) was communicated to the appellant on 5.3.2002. The appeal was submitted on 12.6.2002 to the Commissioner (Appeals) at Mumbai, whose order is impugned in this appeal. The Commissioner’s finding that the appeal, having been received beyond the period of 90 days (60 days prescribed in Section 35 of the act, and further period of 30 days within which an appeal would be accepted if there were a satisfactory explanation for the delay) is barred by limitation is therefore correct.
3. Mr. G. Nag, the Executive Director of the appellant, contends as follows. The appellant had routinely been filings appeals in the past to the Commissioner (Appeals) at Pune. In this case, too, the appeal, as usual, was sent to the office of the Commissioner (Appeals) at Building No. 2, Shankar Sheth Road, Swargate, Pune, on 2.5.2002, well within the prescribed period of two months. The envelope of containing the appeal was returned by the postal authorities with the remark “Addressee left”. Subsequently, the appellant sent the appeals to the Commissioner (Appeals) at Mumbai. The delay was therefore, inadvertent, and to be condoned. Besides, the preamble to the order of the Additional Commissioner indicated a period of three months for filing the appeal.
4. The appellant’s explanation is somewhat difficult to accept. From what was gathered from the counsel present in court, the jurisdiction of the Commissioner (Appeals) at Pune, to hear appeals from Nasik was transferred to the Commissioner (Appeals) Mumbai in 1999. The office of the Commissioner (Appeals) shifted from its existing accommodation at building No. 2, Shankar Sheth Road to its present premises in 2000. If, as is claimed, the appellant was regularly filing appeals, it would surely have been aware of both these facts when the appeal to the Commissioner (Appeals) was filed in the present case. The appellant is also not able to satisfactorily answer the point that the Commissioner (Appeals) makes in his order, that the envelope which contained the appeal sent to the Commissioner (Appeals) at Pune was postmarked 1.6.2002 by the postal department when it was tendered for transmission. The contention that this is for postal authorities to answer is not very satisfactory.
5. Apart from these considerations, the fact remain that the appeal has been received by the jurisdictional Commissioner (Appeals) beyond 90 days from the date of communication of the order impugned in that appeal. The Commissioner (Appeals) does not have power to condone the delay to that extent. The Tribunal also therefore does not have power to hear and dispose of the appeal against the Commissioner (Appeals)’s order on merits. The order of the lower authority has not merged in the order of the Commissioner (Appeals). The decision of the larger bench of the Tribunal in Maithan Ceramic Ltd., v. C.C.E. 2002 (145) E.L.T. 394 is relevant in this regard.
6. Appeal dismissed.