The principles to be applied by the appellate authority in condoning delay in filing an appeal under Section 35 of the Central Excises and Salt Act, 1944.

( 1 ) THE petitioner is manufacturer of vacuum cleaners. The case of the petitioner is that it manufactures certain items as part of the vacuum cleaners whereas the other parts and accessories known as optional accessories are purchased from the market and so such accessories are never manufactured within the factory premises of the petitioner nor they are cleared from the factory premises as such they are not excisable goods nor the value of such products can be added for assessing the value of the product for the purposes of levying the excise duty. According to the petitioner this position has been upheld by the order of the Central excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos. E/676/94-A and e/1647/94-A, dated 5-2-1996 1996 (83) E. L. T. 334 (Tribunal ). According to the petitioner the tribunal had come to a finding of fact that extra numbers of bags in excess of one supplied along with the machine duly fitted will not be its component parts and they do not form part of the assessable value. The said order was passed for the period August, 1992 to January, 1993.

( 2 ) MR. Sudhir Chandra appearing for the petitioner submits that for the present period also the same principle should be applied and only the product manufactured in the factory premises and cleared be made assessable in terms of the said order of the Tribunal. Counsel for the petitioner submits that unfortunately due to the illness of the Advocate of M/s. Crawford Bayley and Co. of bombay who was conducting the case, the appeal against the order passed by the Asstt. Collector could not be filed before the Collector (Appeals) within time as prescribed under section 35 of the Central Excises and Salt Act, 1944. The appeal was filed beyond time as such the Collector (Appeals) refused to entertain the said appeal.

( 3 ) MR. Sudhir Chandra also challenges the order of the Assistant Collector on the ground that the same was passed ex parte and in violation of the principles of natural justice. According to the petitioner, the said order of the Assistant Collector was passed a few days before the passing of the order of the Tribunal as such they had gone in appeal before the Collector (Appeals) but unfortunately in view of the facts stated above the appeal was dismissed on a technical interpretations of Section 35 of the said Act. Section 35 of the Central Excises and Salt Act read as follows :

"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)] (hereinafter in this Chapter referred to as the [commissioner (Appeals)] within three months from the date of communication to him of such decision or order. Provided that [commissioner (Appeals)] may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period or three months. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. "

( 4 ) ACCORDING to Mr. Sudhir Chandra, his clients were not aware with the provisions of Section 35, moreover, due to the circumstances beyond the control of his clients, their Counsels having fallen ill for considerable length of time the appeal could not be filed. In this connection Counsel for the petitioner relies on a decision of Delhi High Court in Civil Misc. Writ Petition No. 3650 of 1995 (Eureka Forbes Ltd. v. Union of India and Ors.) which under the similar circumstances held that the delay should have been condoned by the authorities and the authorities should have heard the matter on merits. The said decision refers to a Supreme Court decision reported in AIR 1987 SC 1353 - Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. wherein th