Enertech Ups Limited Vs. Commissioner of Customs and

1. the application is for condonation of delay of two months and 12 days. the counsel for the applicant says that the applicant received from the office of the assistant commissioner a photocopy of the order dated 23.12.1999 on 2.3.2000. it approached the commissioner (appeals) to get the original copy of the order-in-appeal which it received on 15.5.2000. the appeal was filed on 14.8.2000. he contends that in terms of sub-section (5) of section 35a of the act the commissioner (appeals) required to communicate the order passed by him to the appellant or the adjudicating authority under the commissioner of central excise. such communication only took place on 15.5.2000. hence the time limit for filing the appeal commence run from this day.2. we are not able to persuade ourselves able to accept this proposition. the appellant, in our view, the order in question has been communicated to the applicant on 2.3.2000 and that such copy of the order that was passed by the commissioner (appeals) was received by it from official channels, the office of the jurisdictional assistant commissioner. the order has therefore communicated to the applicant on that date and the limitation will commence run from that day.3. it is alternatively contended that if there is a delay it is due to sufficient cause that the applicant proceeded on the advice of the consultant. there is, however, no evidence in support. the counsel for the applicant says that the consultant subsequently died. even in that event, other evidence- in the form of the opinion, the query sent, etc.should be available. none has been produced. therefore, we are not in a position to accept this contention.4. we therefore decline to condone the delay. the appeal is dismissed as barred by limitation.