ORDER
1. The appeal is taken up for disposal after waiving deposit with consent of both sides.
2. The appeal is against the order of the Commissioner (Appeals) dismissing the appeal before him on the ground that there was a delay of 44 days in filing the appeal.
3. The contention of the counsel for the applicant is that the order in question was not communicated directly tot he appellant as provided under Section 35 of the Act. It was pasted upon the factory presumably in pursuance of Section 37C. Therefore there has been no delay in filing of the appeal because the order was not communicated under Section 35 of the Act. The other contention is that there has been no notice given before the appeal was dismissed on limitation. If the Commissioner (Appeals) found that there was delay in filing the appeal he ought to have been given the appellant an opportunity to show that there was no such delay. Such notice is mandatory before dismissing the appeal.
4. Accordingly the appeal is allowed and the impugned order set aside. Counsel for the appellant undertakes to file before the Commissioner (Appeals) submissions with regard to delay in filing the appeal, within a month from the receipt of this order. The Commissioner (Appeals) shall decide on the alleged delay after considering the submissions shown and thereafter if necessary upon the merits of the appeal.