THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN CENTRAL EXCISE APPEAL No.81 of 2011 April 07, 2011 Between: M/s.Sri Bhavani Castings Ltd., Ramanayya Peta, Kakinada Represented by its Managing Director … Appe And The Commissioner of Central Excise, Commissionerate-II, Visakhapatnam ... Respon THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN CENTRAL EXCISE APPEAL No.81 of 2011 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The appellant is aggrieved by the order dated 08.1.2010 in Final O dated 21.12.2009 of the Customs, Excise and Service Tax Appellate Tribu South Zone, Bangalore (CESTAT). By impugned order the learned CES declined to condone the delay of 85 days in filing appeal under Section 35 the Central Excise Act, 1944 (the Act). The appellant filed an appeal against the Order-in-Appeal dated 21.1.2 passed by the Commissioner of Central Excise & Customs (Appe questioning the adjudication with regard to wrongful availment of input tax c on freight outward from January, 2007 to October, 2007. There was a delay o days. Therefore, the petitioner filed an application being ST/Misc./62/201 condone the delay of 85 days. In support of the application, the appe alleged that the concerned official dealing with the files left the service; the m related to old period; and the appellant could not locate the files and o material for filing appeal in time. The learned CESTAT considered this as and, while opining that they did not find any justifiable reason, rejected application for condonation of the delay. The learned Counsel for the appellant submits that during the pendenc the application for condonation of the delay the appellant sought time and an affidavit of concerned officials in support of the petition averment, but same was not considered by the CESTAT. According to him, non-considera of the material relevant for adjudicating the lis itself give rise to a question of for the purpose of Section 35G of the Act. We have given our anxious consideration and are afraid we cannot ac the plea of the learned Counsel. It is now well settled that, when appellate/revisional authority rejects an application for condonation of delay Court sitting in appeal or revision against such an order has to independe consider the application for condonation of delay. Applying this test, on per of the affidavit accompanying the application filed before the CESTAT, we convinced that the delay sought to be condoned is very vague. The b averments, as to when the order of the Commissioner (Appeals) was recei when the concerned official left the appellant; when the appellant decided to appeal; and when they are able to retrieve the records etc., are not e mentioned in the affidavit. A very bald allegation is made that the conce official left the appellant and relevant records could not be placed. In considered opinion, it cannot be a sufficient ground for condonation of delay, in that view of the matter the order of the CESTAT is unexceptionable and d not involve any substantial question of law. The central excise appeal is, therefore, dismissed in limine. No costs. ____________ (V.V.S.RAO ___________________________ (RAMESH RANGANATHAN April 07, 2011 YS