Limitation for excise appeal: condonable delay must be examined first, then the appeal decided on merits.

An appeal filed after receipt of the Order-in-Original was treated as falling within the statutory time frame under Section 35 of the Central Excise Act, 1944 on the undisputed dates recorded. The delay was regarded as one that the Commissioner (Appeals) could consider for condonation, and the appellate authority was directed to examine condonation, stay, and the appeal on merits in accordance with law rather than reject the matter on limitation alone. The matter was therefore remitted for consideration by the Commissioner (Appeals).

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Issues: Whether the appeal before the Commissioner (Appeals) was within limitation and, if delay had to be condoned, whether the matter should be considered on merits.

Analysis: The receipt of the Order-in-Original on 30-7-2007 and the filing of the appeal on 18-10-2007 were found to be undisputed. On those facts, the appeal was held to be within the time frame contemplated under Section 35 of the Central Excise Act, 1944. The delay was treated as one capable of being condoned by the Commissioner (Appeals), and the Tribunal directed the appellant to move an application for condonation of delay within the stipulated time so that the appellate authority could examine condonation, stay, and the appeal on merits in accordance with law.

Conclusion: The issue was answered in favour of the appellant, and the matter was sent back for consideration of condonation and decision on merits by the Commissioner (Appeals).

Ratio Decidendi: Where the appeal is filed within the statutory time frame and the delay is condonable, the appellate authority should examine condonation and then decide the appeal on merits rather than rejecting it on limitation alone.

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