JUDGMENT
G.A. Brahma Deva, Member (J)
1. After hearing for some time with reference to the stay petition filed by the party, we felt that the matter itself can be disposed of on the limited issue. Accordingly appeal was taken up for regular hearing with the consent of both sides, Shri Velayudhan, Manager of the appellant Company, reiterated the written submissions.
2. Shri Narasimha Murthy learned DR appearing for the Revenue submitted that appeal has been dismissed by the Commissioner (Appeals) as barred by time. He said that Appeal was filed even beyond the stipulated period of 90 days.
3. We have carefully considered the matter. Section 35 of the Act is as under:
“Section 35. Appeals to (Commissioner (Appeals)–(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a (Commissioner of Central Excise), may appeal to the (Commissioner of Central Excise (Appeals) (hereafter in this Chapter referred to as the (Commissioner (Appeals) within three months from the date of the communication to him of such decision or order:
Provided that 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 three months, allow it to be presented within a further period of three months.”
4. As per the wordings of Section it is clear that appeal was required to be filed within three months from the date of communication of the order, provided the Commissioner (Appeals) has got the power to condone the delay for a further period of three months if he was satisfied that appellant was prevented from sufficient cause not to prefer an appeal within three months. It is clear from the records that there was a delay in filing the appeal and appeal was filed deyond the stipulated period as mentioned in the Proviso. Commissioner (Appeals) has no power to condone the delay beyond the period as stipulated in the Proviso to Section 35 of the Act. This view was upheld by larger bench in the case of Maithan Ceramic Limited v. CCE, Jamshedpur, 2002 (84) ECC 815 (T-LB) : 2002 (51) RLT 583 (CEGAT-LB).
5. In view of this settled position, we do not find any infirmity in the impugned order. In the result appeal is hereby dismissed.