2018 (8) TMI 1218

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....e in Appeal bearing No.BEL-EXCUS-000-APP-MSC-293-2017-18 as per Annexure-F. 2. It is the case of the petitioner that on 25.09.2014, the Commissioner of Central Excise issued show cause notice to him to show cause as to why outstanding balance defaulted duty of Excise of Rs. 47,38,497/- being the duty involved in the goods cleared during the period from April-2011 to August-2012 shall not be demanded and recovered from the assessee under the provisions of Section 11A(4) of the Central Excise Ac t. In response to the said notice, the petitioner filed reply dated 09.02.2016 and contended that the petitioner has paid the total interest of Rs. 8,43,000/- for entire defaulted period and also further contended that entire defaulted amount along....

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....ed by the Appellate Authority dismissing the appeal as per Annexure-F dated 19.3.2018 as barred by limitation is erroneous and contrary to the material on record. He would further contend that even though the petitioner paid the entire amount due before issue of show cause notice, but still the 2nd respondent directed the petitioner to pay 25% of the duty demanded and the same is erroneous. The Appellate Authority ought to have condoned the delay in filing the appeal in view of the provisions of Section 29(2) of the Limitation Act even though the appeal filed under Section 35 of the Central Excise Act, 1944. He would further contend that since the rights of the parties are involved, the Appellate Authority ought to have condoned the delay a....

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....d therefore he could not file the appeal within time. But the Appellate Authority proceeded to dismiss the appeal mainly on the ground that there is a delay of 156 days in filing the appeal and the Appellate Authority has no power to condone the delay beyond 90 days as contemplated under Section 35(1) of the Central Excise Act, 1944. 9. The 2nd respondent has reduced the penalty and directed the petitioner to pay 25% of the duty demand ed. According to the petitioner, he has to paid the entire amount along with interest before the show cause notice issued and the amount of 25% of the outstanding balance defaulted duty of excise is Rs. 11,84,624=25. There fore the rights of the parties are involved before the Appellate Authority. The Appe....