In the absence of application seeking condonation of delay, the Commissioner Appeal should inform the assessee to file an application for condonation of delay before dismissing the appeal on the ground of it being barred by limitation.

Recently, in the case of 

Janakkumar C. Naik v.Commissioner of Central Excise, Daman, (2014) 

45 taxmann.com 193 (Ahmedabad - CESTAT), 

the Ahmedabad CESTAT held that in the absence of application seeking condonation of delay, the Commissioner Appeal should inform the assessee to file an application for condonation of delay before dismissing the appeal on the ground of it being barred by limitation.

In the instant case, 

The assessee could not file the appeal before the Commissioner (Appeals) within the time period prescribed (2 months) by Section 85 of the Finance Act, 1994 and delayed it by 10 days. 

Further, the assessee did not submit the application for condonation of delay and the Commissioner rejected the appeal as being barred by limitation. 

The Ahmedabad CESTAT observed that though the appeal has been filed after the statutory period of two months and no application for condonation of delay has been filed but the appellate authority should have informed the assessee to file an application for condonation of delay. Moreover, the delayed period also lies within the power vested with the appellate authority in terms of proviso to Section 85(3A) which provides that the Commissioner (Appeals) has the power to condone the delay by a further period of one month subject to the condition that the appellant was prevented by sufficient cause from filing the appeal. Therefore, the appeal could not be rejected merely on non-filing of application for condonation of delay.

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