1999 (12) TMI 201

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....s filed beyond the statutory period prescribed under Section 35 of the Central Excise Act. He observed that the appeal has been received in his office on 16-3-1999 and the order in original as admitted in the appeal was received by the appellants on 18-12-1997. Accordingly, appeal has been filed late by 11 months and 28 days. He was not convinced with the reason given by the assessee to condone the delay. He observed that "It is appellants' responsibility to the the appeal within the time limit and also it was the duty of the appellants to exercise proper control over the receipt/disposal of the important legal matters and to monitor the progress of the disposal. But it appears that they have not shown due diligance in the matter. For their....

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...., therefore, turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdi....

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....econd issue, I am not convinced with the arguments advanced on behalf of the assessee that Tribunal should streightaway decide the issue on merits without going into time bar issue before the first appellate authority. The decision cited by the appellants' Counsel (Supra) is not much helpful to him. The ruling given by the Supreme Court in the aforesaid case was with reference to doctrine of merger. No why it was said that the second appellate authority should look into the matter and deal with the appeal on merits if the appeal is in time before the second appellate authority without going into time bar issue before the first appellate authority. With reference to the cause of action and merger theory the observation made by the Supreme Co....