Per V.K. Agrawal : In this appeal filed by M/s. Uniroyal Textiles Industries Ltd., the issue involved is whether the appeal filed by them before the Commissioner (Appeals) was time-barred or not.

2. Shri Vipul Raheja, learned Advocate, submitted that the appellant had imported software which was cleared under exemption in terms of serial No. 206 of Notification No. 23/98 without payment of duty; that thereafter, the Show-cause Notice was issued to them for demanding customs duty on the ground that the benefit of exemption notification was not available to them; that the Deputy Commissioner under his letter dated 30.6.2000 directed them to deposit the duty demanded in the Show-cause Notice; that as this communication did not specify that it is an Order under Section 28(2) of the Customs Act and as it did not contain any preamble, the appellant bona fidely believed that same is not an adjudication Order; that they went on making a representation to grant a personal hearing to explain their position; that it has been held by the Tribunal in the case of Brooke Bond India Ltd. vs. CCE, Ahmedabad 1983 ELT 1169 (T) that the letter of Deputy Commissioner of Central Excise cannot be considered as an adjudicating order. The Order to be an adjudicating order must be a speaking and proper order. Learned Advocate submitted that the present letter contained no reasoning for demanding duty, as such, it is not an Order.

3. Countering the arguments, Shri P.K. Ray, learned DR, submitted that the Deputy Commissioner has passed the Order on 30.6.2000 confirming the demand of duty against the appellants; that it has clearly mentioned in the said communication that appeal against this Order lies to the appellate Commissioner, Customs within three months from the date of receipt as prescribed under Section 128(1) of the Customs Act; that any order passed by a proper officer has to be set aside by higher appellate Authority and no person can treat the order as nullity on the ground that it is not a speaking order. He relied upon the decision of the Apex Court in the case of Lajya Dyeing Bleaching Works vs. UOI - 2003 (57) RLT 380 (SC)=2003 (155) ELT 213 (SC) wherein it has been held by the Apex Court that the order may not be in the prescribed format and it may also be that principles of natural justice were not followed but those are grounds on which the order could be challenged.

4. We have considered the submissions of both the sides. It has not been disputed by the appellant that the Deputy Commissioner's Order was passed on 30.6.2000 and the appellant wrote a letter to the Deputy Commissioner on 22.7.2000 acknowledging the receipt of the impugned Order. The appeal was filed on 14.2.2001 that is after more than six months of the receipt of the impugned Order. As per Section 128 (1) of the Customs Act, an appeal has to be filed within three months from the date of communication of the order and the Commissioner (Appeals) is only empowered to allow the appeal to be presented within further period of three months. Thus, Commissioner has no power to entertain the appeal, which is filed beyond the six months from the date of communication of the Order. In view of this, the appeal filed by the appellants before the Commissioner (Appeals) is hit by the time-limit specified in Section 128 of the Customs Act. We also find no substance in the submission of the appellant that the communication dated 30.6.2000 from the Deputy Commissioner was not an Order. A perusal of the Order reveals that it referred to the Show cause Notice issued by the department and the observation of the Deputy Commissioner shows that he had duly taken into account the plea and considered that the duty originally demanded is correct. He has, therefore, confirmed the demand under Section 28 of the Customs Act. It is also mentioned in the Order that appeal against it lies with the Commissioner within three months period and the appeal should be court fee stamped. Thus, there was no