P.G. Chacko, Judicial Member - One of these applications filed by the appellant seeks condonation of delay of 50 days involved in the filing of the appeal. Though, today there is no representation for the appellant despite notice, we allow this application after hearing the learned Additional Commissioner (AR), having found satisfactory explanation of the delay by the appellant. Next application by the appellant seeks waiver of pre-deposit and stay of recovery. After a perusal of the records and hearing the learned Additional Commissioner (AR), we have found this case fit for summary disposal. Accordingly, after dispensing with pre-deposit, we proceed to deal with the appeal.

2. This appeal is directed against the appellate Commissioner's order dismissing the assessee's appeal (filed against an adverse order of the original authority) on the ground of limitation. The appellate authority found that the appeal had been filed with a delay of 10 months and noted that it had no power to condone such delay. Consequently, the assessee's appeal came to be dismissed.

3. The learned Additional Commissioner (AR) submits that the order-in-original had been received by the party on 28.4.2009 and that the appeal there against was filed on 8.7.2010 with the above delay. These facts are borne on record. The learned Additional Commissioner (AR) also refers to Singh Enterprises v. CCE 2008 (221) ELT 163 wherein the Hon'ble Supreme Court held that a Commissioner (Appeals) did not have the power to condone any delay of appeal beyond the condonable period of delay prescribed under Section 35 of the Central Excise Act, 1944. The apex court further held that even this Tribunal, High Court, or even the Supreme Court could not condone such delay. In the instant case, the condonable period of delay prescribed under sub-section (5) of Section 85 of the Finance Act, 1944 is three months. The assessee should have filed their appeal in the normal course within a period of three months (statutory period of limitation) and should not have delayed the filing of such appeal beyond a further period of three months (condonable period of delay) to be entertained on merits by the Commissioner of Service Tax (Appeals). The delay before the learned Commissioner (Appeals) in this case was enormous as 10 months and the same could not be condoned as rightly observed by him.

4. In view of the binding case law cited by the learned Additional Commissioner (AR) we dismiss this appeal. The stay application also stands disposed of.