Appellate Tribunal overturns time-barred dismissal, remands for hearing, waives pre-deposit.

The Appellate Tribunal set aside the Commissioner (Appeals)'s order dismissing the appeal as time-barred, citing the correct interpretation of the limitation period under Section 35 of the Central Excise Act. The Tribunal remanded the matter back to the Commissioner (Appeals) after waiving the pre-deposit of dues, allowing the applicant's appeal and providing an opportunity for a hearing.

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Issues Involved:
1. Appeal dismissal as time-barred by Commissioner (Appeals) and waiver of pre-deposit of duty, interest, and penalty.

Analysis:
The applicant filed an application for waiver of pre-deposit of duty, interest, and penalty after the appeal was dismissed by the Commissioner (Appeals) as time-barred. The applicant contended that the appeal was dismissed on the grounds of being time-barred due to a delay in filing. However, the applicant argued that the appeal was filed within the time prescribed under Section 35 of the Central Excise Act, as the limitation period starts from the date of communication of the adjudication order. The applicant also pointed out that the Commissioner (Appeals) has the power to condone a further delay of 30 days in filing the appeal upon showing sufficient cause. The applicant mentioned that during the arguments, the Commissioner (Appeals) did not raise the issue of time-bar, making the impugned order unsustainable.

The Revenue's contention was that since the appeal was dismissed as time-barred, the applicant was required to deposit the disputed amount. However, the Appellate Tribunal found that the Commissioner (Appeals) had erred in dismissing the appeal as time-barred. The Tribunal referred to Section 9 of the General Clauses Act, which provides for the exclusion of the first day in a series of days and the inclusion of the last day. The Tribunal noted that according to Section 35 of the Central Excise Act, the appeal must be filed within 60 days from the date of communication of the adjudication order. Therefore, the limitation period should start from the day after the communication of the order. Consequently, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) after waiving the pre-deposit of dues. The Tribunal allowed the application for waiver of pre-deposit after providing an opportunity of hearing to the appellant, and disposed of the appeal by way of remand.

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