M/s. Arvind Brands Limited vs Commissioner of Central Excise Office of the Commissioner of Central Excise Bangalore - 1 Commissionaerate C.R. Buildings, Queens Road P.B.No.5400 Bangalore - 560001

N. Kumar, J.—This assessee has preferred this appeal challenging the order passed by the Tribunal which has upheld the order passed by the Appellate Commissioner who has dismissed the appeal on the ground of bar of limitation.

The material on record discloses that the order of levying duty, interest and penalty was served on the assessee on 19.12.2007. The appeal lies against the mid order u/s 35 of the Central Excise Act, 1944, (for short hereinafter referral to as ''Act''). The period prescribed under sub-Section (11 of Section 35 is 60 days period from the date of communication to him of such decision or order. The 60 days period empires on 17.02.2008 after excluding 19.12.2007, the day on which the order was served on the assessee. Proviso to sub-Section (1) of Section 35 provides for a period of limitation insofar as condonation of delay is concerned. 30 days is the extent to which the authority has been conferred the power to condone the delay, if the appeal is not filed within the time. The said 30 days period expires on 19.03.2008. There is a dispute regarding the day on which the appeal is filed. According to the assessee, it is on 18th and according to the Department it is on 19th. Whether it is on 18th or 19th, the appeal is within 30 days. Both the Appellate Commissioner and the Tribunal committed a serious error in holding that the appeal is Sled beyond 30 days time and therefore, the delay could not be condoned and that the appeal is barred by time.

In view of what is stated above, the impugned orders are illegal and contrary to law and accordingly, it is set aside, Appeal preferred by the assessee before the Appellate Commissioner was well within time. Hence, we pass the following order:

ORDER

(i) Appeal is allowed,

(ii) The order passed by the, Tribunal as well as the Appellate Commissioner are hereby set aside.

(iii) The appeal preferred by the assessee before the Appellate Commissioner is restored to its original file and the Appellate commissioner shall decide the appeal on merits and in accordance with law.