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2015 (3) TMI 627 - HC - Central ExcisePower of Commissioner (A) to condone the delay - Wrong availment of CENVAT credit - credit on "Rough Forged" and 'Rail' - Bar of limitation - Commissioner held hat appeal was filed not only beyond period of limitation but also beyond period permissible to be condoned under statute and therefore, it had no power to condone delay beyond maximum period prescribed - Whether dismissal of appeal by Commissioner (A) on the ground of limitation was justified or not - Held that:- Section 5 of Limitation Act is completely excluded in its application to Section 35 of Act, 1944. There the Court proceeded to consider argument that in writ jurisdiction, delay beyond 90 days, could have been condoned by High Court. Firstly, the Court considered explanation and found unacceptable. Having said so, Court also held that judgment in I.T.C.'s Case (1990 (8) TMI 173 - SUPREME COURT OF INDIA) has not rendered any law that even where statute presecibe a particular period of limitation, High Court or Supreme Court can direct for condonation. Court categorically said that all such Courts would render statutory provisions providing for limitation rather otiose. - since admittedly the appellant has not come in a writ petition, an appeal under Section 35G of Act, 1944 has come up before this Court. Even Uttrakhand High Court dismissed appeal, preferred by party [2014 (3) TMI 419 - UTTARAKHAND HIGH COURT], holding that delay was not condonable. So far as indulgence granted by Nainital High Court against recovery was in the writ petition, which has come up before this Court on the ground that recovery was patently illegal and without jurisdiction and nonest, but, no indulgence was granted in appeal preferred by assessee. - Decided against the assessee.
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