( 1 ) THE question raised by the learned counsel for the appellant is as under:

"whether the provision of Section 128 of the Customs Act, 1962 completely bars the Commissioner ( Appeals) from condoning the delay beyond a period of 30 days even in a deserving case and that despite the order made by the Commissioner (Appeals) is it i cumbent upon the Tribunal to consider the appeal on merits ? "

( 2 ) THE facts of the case relevant for disposal of this appeal are as under:

( 3 ) THE order in original was made on 5th November, 2001, after hearing the petitioner whereby the demand was confirmed with interest. The said order was challenged by the petitioner by preferring an appeal before the Commissioner of Customs (Appeals) bei ng Appeal No. CCA/424/acu/2002. The order impugned was received by the appellant on 7th November, 2001. From the order made by the Commissioner of Customs (Appeals), it transpires that the appeal was filed on 13. 4. 2002; a notice was issued on 14. 8. 2002, calling upon the appellant that the appeal was not maintainable. The consultant of the petitioner stated that he has nothing more to add to what is stated in the memorandum of appeal. To substantiate his say, for condonation of delay, a medical certific te was produced.

( 4 ) THE Appellate Authority pointed out that Section 128 of the Customs Act, 1962 ( hereinafter referred to as the Act) stipulates a period of limitation of 60 days from the date of communication of the order for preferring an appeal. The Commissioner w as also aware that if the appellant was prevented by sufficient cause from presenting the appeal and such delay is of not more than 30 days, the delay can be condoned, however, if it is beyond 30 days, then the appeal cannot be entertained. As there w s delay of more than 30 days, the appeal was dismissed as time barred. Against this order, the Customs Excise and Gold ( Control ) Appellate Tribunal, New Delhi, was approached by preferring an appeal being No. C-01/03a. The Tribunal dismissed the appeal affirming that the Commissioner ( Appeals ) was not competent to condone the delay. For the said purpose, the Tribunal placed reliance on a decision delivered by the Tribunal in the case of m/s Abhishek Auto Industries v. C. C. Mumbai ( Import), being fin l order No. 167/2003-B dated 10-12-2002 in appeal No. C/454/2002-B.

( 5 ) LEARNED counsel appearing before us submitted that in view of the provisions contained in section 5 of the Limitation Act, 1963 the application for condonation of delay ought to have been considered by the appellate authority and the delay ought to have been condoned. It was further submitted that the Tribunal ought to have entertained the appeal on merits. According to the learned counsel for the petitioner, considering the provisions contained in section 29 (2) of the Indian Limitation Act, 1963 ead with Section 5 thereof, irrespective of the fact that the matter was under the Customs Act, the appellate authority ought to have condoned the delay, examined the matter on merits, it could not have dismissed the appeal on the ground that the Commi sioner (Appeals) can only condone the delay, if an appeal is presented within a period of 30 days after the statutory period of 60 days in view of section 29 (2) of the Indian Limitation Act, 1963 section 128 of the Act. The said Section reads as under:-

"128. Appeals to Commissioner ( Appeals ). (1) Any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a {commissioner of Customs} may appeal to the Commissioner ( Appeals) { 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 such