Dismissed appeal doesn't merge with appellate order. Tribunal rejects appeal following Larger Bench ruling.

The Tribunal held that when an appeal is dismissed by the Commissioner (Appeals) due to exceeding the time limit under Section 35 of the Central Excise Act, 1944, the order from the adjudicating authority does not merge with the appellate order. Therefore, the Tribunal rejected the appeal, aligning with the decision of the Larger Bench against the appellants, and confirming the legal soundness of the view taken by the West Regional Bench in the case of Ronak Dyeing Ltd.

---

---

Issues:
Whether the Tribunal can consider the appeal on merits when dismissed by the Commissioner (Appeals) due to delay in filing beyond the prescribed period under Section 35 of the Central Excise Act, 1944.

Analysis:
The issue at hand revolves around the Tribunal's authority to entertain an appeal on merit when dismissed by the Commissioner (Appeals) for being filed after the specified time limit under Section 35 of the Central Excise Act, 1944. The appellant argues that the order in original merges with the order in appeal, making the appeal maintainable before the second Appellate authority. This argument is supported by the decision in the case of Mark Auto Industries v. C.C.E., New Delhi. However, the Revenue contends, citing the case of Ronak Dyeing Ltd. v. Commissioner of Central Excise, Mumbai-III, that a contrary view has been taken by the Western Regional Bench.

The provisions of Section 35 of the Central Excise Act, 1944 are crucial in this context. The section allows for an appeal to the Commissioner (Appeals) within three months of the decision or order, with a provision for condoning the delay for an additional three months if sufficient cause is shown. It is emphasized that the Commissioner (Appeals) lacks the authority to condone delays beyond the prescribed period under this section. The Tribunal in the Mark Auto Industries case held that it can hear the appeal on merit even if dismissed by the Commissioner (Appeals) due to exceeding the time limit, based on the concept of merger between the original and appellate orders.

However, the Hon'ble Supreme Court's ruling in Rani Choudhury v. Lt. Col. Suraj Jit Choudhury establishes that when an appeal is dismissed as time-barred, the decree from the trial court does not merge with the appellate decree. This legal principle has been upheld by various High Courts, including the Andhra Pradesh High Court and the Delhi High Court. The doctrine of merger is not applicable in cases where an appeal is dismissed due to default, abatement, or being time-barred.

Examining the issue from the perspective of limitation under the Act, it is noted that by considering an appeal on the grounds of merger, the Tribunal effectively extends the statutory period of limitation under Section 35 of the Central Excise Act, 1944. The Supreme Court's decision in Union of India v. Kirloskar Pneumatic Company reinforces the principle that even the High Court lacks the authority to extend the limitation period provided by statute. The Court emphasized that legal provisions must be adhered to, and authorities cannot be directed to act contrary to the law.

In conclusion, the Tribunal determined that when an appeal is dismissed by the Commissioner (Appeals) due to limitation, the order from the adjudicating authority does not merge with the appellate order. Therefore, the view taken by the West Regional Bench in the case of Ronak Dyeing Ltd. is deemed correct, and any opposing view is not legally sound. The appeal was rejected based on the decision of the Larger Bench of the Tribunal against the appellants.

---