TMI Blog2008 (3) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... rther period of 30 days only. 2. In Special Civil Application No. 4973 of 2006, the Deputy Commissioner of Central Excise Customs, Division I, Ankleshwar passed order dated 26-6-2002 confirming the demand of excise duty to the tune of Rs. 19,01,364/- with interest at the appropriate rate in terms of Section 11AB of the Act and also imposing penalty of Rs. 5,00,000/- on the petitioner Company in terms of erstwhile Rule 173Q(1) of the Central Excise Rules, 1944. The petitioner preferred an appeal against the said order before the Commissioner (Appeals), Central Excise Customs, Vadodara on 11-2-2003 along with an application for condoning the delay. The petitioner contended that although the impugned order was handed over by the Superintendent, Central Excise to their consultant in July, 2002, the same was not handed over to the petitioner and that the petitioner Company received the order only on 27-1-2003 and, therefore, the appeal filed on 11-2-2003 was within the limitation period of 60 days. It was contended in the alternative that if there was delay, there was sufficient cause for the delay in presenting the appeal beyond the limitation period of 60 days and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Commissioner (Appeals) under Section 35 of the Act on 31-3-2005. The petitioner also preferred an application for condonation of delay of 37 days. By order dated 19-5-2005, the Commissioner (Appeals) dismissed the appeal as time barred. 5. It is pertinent to note that in all the three cases, the concerned petitioners challenged the above orders of the Commissioner (Appeals) before the Customs, Excise and Service Tax Appellate Tribunal. In all the three cases, the Tribunal confirmed that the Commissioner (Appeals) had no power to condone the delay beyond the powers given to him under the proviso to Section 35(1) of the Act. 6. The petitioners have thereupon filed these petitions and have challenged the constitutional validity of the proviso to sub-section (1) of Section 35 of the Central Excise Act, 1944 in so far as the power of condonation of delay conferred on the Commissioner (Appeals) is confined to a period of only 30 days. The said Section reads as under :- "35. Appeals to Commissioner (Appeals). - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a shorter period of limitation and also prescribing only a limited power of condoning delay for the appeals under Section 35(1) of the Act, no objective is sought to be achieved. Objectives like early disposal of appeals, collection of revenue, etc., are common to all appeals. Hence, such restriction on the power of the appellate authority under Section 35(1) in the matter of condonation of delay is arbitrary and discriminatory. 7.3 The Commissioner (Appeals) entertains appeals against the orders passed by the Assistant Commissioner, Deputy Commissioner or Additional Commissioner of Central Excise. The Appellate Tribunal entertains First Appeals against the orders of the Commissioner as an adjudicating authority or Second Appeals against the orders of the Commissioner (Appeals). It is only a fortuitous circumstance whether the adjudicating authority shall be Commissioner or any officer subordinate to him. The same question may be involved before a Deputy Commissioner and before a Commissioner. The difference in their jurisdiction may only depend upon the amount of duty involved. However, assessees who are otherwise similarly situate are classified in two different categories a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from 11-10-1982. While this new Chapter conferred on the Appellate Tribunal power to entertain appeals within three months with further power to condone the if sufficient cause was shown, simultaneously the power of the Collector (Appeals) in the matter of condonation of delay was restricted to a further period of three months after expiry of the limitation period of three months for filing the appeal. Thereafter vide Act 22 of 1995, the word "Collector (Appeals)" was substituted by the word "Commissioner (Appeals)". However, by Finance Act, 2001, in case of Commissioner (Appeals) the period of limitation was curtailed from three months to 60 days and the period for condoning delay was curtailed from a further period of three months to a further period of 30 days. Sub-section (4A) inserted in Section 35A relating to procedure in appeal also requires the Commissioner (Appeals) to endeavour to hear and decide every appeal within a period of six months from the date of filing. Reference is also made to the speech of the then Finance Minister on 28-2-2001 while presenting the Union Budget 2001-02. Reference is also made to the letter 28-2-2001 of the Joint Secretary (Prev.), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creature of the statute and, therefore, such right can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself, following the rules of natural justice, without any right of appeal would be violative of any constitutional or statutory right. If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and available to the appellant [ Vijay Prakash Mehta, 1989 (39) E.L.T. 178 (S.C.) = 1988 (4) SCC 402].). Where a right of appeal is provided under an Act, limitation thereof must also be provided in the Act. Accordingly, when the Parliament confers the right of appeal under Section 35(1) of the Central Excise Act, the Parliament also has the power to restrict the right by providing for a specific period of limitation. The Parliament also has the equal power to provide for the maximum period of condonable delay. 10. While enacting the Limitation Act, 1963 providing for limitation of suits and other proceedings, the Parliament provided in Section 5 of the said Act that on the appellant satisfying the Court that there was sufficient cause for not preferring the appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India House v. Kishan N. Lalwani - 2003 (9) SCC 393. We find no merit in this petition. The special leave petition is dismissed." In view of the aforesaid decision, there could be no room for doubt that the maximum time limit to file an appeal before the Commissioner (Appeals) under Section 35 of the Central Excise Act is 60 + 30 days i.e. 90 days. The Commissioner has no power to condone the delay beyond the further period of 30 days from the expiry of the limitation period of 60 days within which the appeal ought to have been filed. The aforesaid decision dated 11-5-2007 is reported in M.R. Tobacco Pvt. Ltd. v. Union of India, 2007 (213) E.L.T. A115 (S.C.). 12. We may also note at this stage that even where the revenue is aggrieved by an order of an adjudicating authority, suo motu power of initiation of appeal conferred on the Commissioner under Section 35E(3) of the Act is also to be exercised within a period of three months. This period was earlier one year, but is now reduced to three months by Finance Act, 2007, that is, within three months from the date of communication of the decision or order of the adjudicating authority subordinate to him, the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longing to the same class as assessees preferring appeals before the Appellate Tribunal. The seat of the Appellate Tribunal - Customs, Excise Service Tax Appellate Tribunal - is in a very few places. In fact, in the year 1980, the provisions of Section 35(1) were amended for curtailing the period of limitation from three months to 60 days and the condonable period from three months to 30 days. While the office of the Commissioner (Appeals) was to be found in each and every State and sometimes at more than one place in a State, the principal seat of the Appellate Tribunal was at Delhi and its benches were to be found only in three other metro cities of Bombay, Calcutta and Madras. Even now the Appellate Tribunal has its benches in only 5 cities in addition to its principal seat at Delhi, Assessees carrying on their business at far away places cannot therefore, be expected to file appeals before the Appellate Tribunal as expeditiously as they would be in a position to file the appeals before the Commissioner (Appeals) in their respective States. Hence, assessees preferring appeals before the Appellate Tribunals are in a different class as compared to assessees filing appeals before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggrieved party is an assessee or the revenue. Thus, there is no discrimination in the matter of the length of period for which the delay can be condoned by the Appellate Tribunal, whether the appellant is an assessee or the revenue. 17. In view of the above discussion, it is not necessary to refer to or deal with the decisions cited by the learned Assistant Solicitor General for the preposition that there is a presumption about constitutionality of a statute nor is it necessary to refer to or deal with the decisions cited by the learned counsel for the petitioners as regards the burden of justifying differentiation or discrimination, 18. We, therefore, do not find any merit in any of the contentions raised on behalf of the petitioners for challenging the constitutional validity of the proviso to sub-section (1) of Section 35 of the Central Excise Act, 1944 in so far as the Parliament has provided for the limitation period of 60 days for filing an appeal before the Commissioner (Appeals) and in so far as the power to condone the delay conferred on the Commissioner (Appeals) is only for a period of 30 days after expiry of the limitation period of 60 days. 19. As regards t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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