( 1 ) THE petitioner is engaged in the manufacture of Pan Masala (Gutkha ). Earlier, the petitioner was classyfying this product under sub-heading No. 2404. 49 of the Schedule to the Central Excise Tariff Act, 1985 and was paying 16% basic excise duty and 24% special excise duty on the basis of an approved classification list. Subsequently, the petitioner, on receipt of a letter dated 31. 10. 2000, from the Central Excise Department, filed a fresh classification list and started clearing the aforesaid goods by classifying the same under heading No. 24. 04 and paid Central excise duty accordingly. A show cause notice dated 27. 11. 2001 was issued to the petitioner contending that in respect of the period prior to 28. 02. 2001, the said goods were classifiable under heading 2106. 00 and that the petitioner was liable to pay duty for the period upto 28. 02. 2001. The petitioner filed a reply to the said show cause notice and after considering such reply, the Deputy Commissioner of Central Excise passed an order-in-original No. 61/02 dated 17. 05. 2002 confirming the duty demanded.

( 2 ) THIS is the background leading to the main issue involved in this writ petition. The issue arises in respect of the appeal filed by the petitioner against the said order-in-original dated 17. 05. 2002 which was filed on 28. 07. 2002. Section 35 of the Central Excise Act, 1944 (hereinafter REFERRED TO as "the said Act") provides for appeals to the Commissioner (Appeals) and reads as under:- "35. APPEALS TO COMMISSIONER (APPEALS ). (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter REFERRED TO as the Commissioner (Appeals) within "within sixty days" from the date of the communication to him of such decision or order: provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. " section 35 (1) prescribes that the appeal must, in the first instance, be filed within sixty days from the date of the communication of the decision or order which is the subject matter of the appeal. The proviso to section 35 (1) enables the Commissioner (Appeals) to permit the filing of the appeal beyond the sixty days REFERRED TO above provided that he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the sixty days prescribed. However, on a plain reading of the proviso, it does appear that the Commissioner (Appeals) can exercise such power only within a "further period of thirty days". In other words, the appeal can be filed only upto 90 days from the date of communication of the decision or order appealed from. The first sixty days being the initial period and the further thirty days being at the discretion of the Commissioner (Appeals ).

( 3 ) IT is an admitted position that the appeal that was filed before the Commissioner (Appeals) on 27. 08. 2002 was filed after 94 days of receipt of the order-in-original. The Commissioner (Appeals) rejected the condonation of delay application of the petitioner as well as the appeal. According to the Commissioner (Appeals), the appeal had been filed beyond time and the delay could not be condoned by him as he had no power to condone the delay beyond the period of 30 days. Thus, even if he condoned the delay for the entire thirty days, the appeal would still be beyond time by four (4) days.

( 4 ) BEING aggrieved by this, the petitioner preferred an appeal before the Central Excise and Gold (Control) Appellate Tribunal, New Delhi. The appeal was disposed of by the Tribunal by