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2018 (11) TMI 1620 - HC - Central ExciseCondonation of delay in filing appeal - Commissioner (Appeals) dismissed the appeal on the point of limitation since the appeal was preferred after the period of limitation which could not be condoned in terms of the Section 35 (1) of the Act of 1944 - HELD THAT:- Admitted position is that the appeal was not filed by the present Appellant before the Commissioner (Appeals) within 60 days of the order of the Assessing Authority. It was further not filed within the additional 30 days for which power of condonation has been vested in the Commissioner (Appeals) in terms of the proviso of Section 35(1) of the Act of 1944. Beyond those period of 30 days, the statue does not permit any kind of condonation to be allowed by the Commissioner (Appeals). Therefore, if the appeal of the Appellant was presented after the 30th day i.e. beyond the extended period of limitation it was not condonable. The Commissioner (Appeals) was forced by law to dismiss the appeal as being time barred. Since the Act of 1944 is a special Act, therefore, the provisions of the Act itself will have to be relied upon and other statues of limitation cannot be borrowed or adopted to overcome the rigors of the statue which has fixed a time frame of limitation - The power to condone the delay conferred upon the Commissioner (Appeals) ends if the appeal is preferred after 30 days of extended period and expiry of 60 days of initial limitation. As we are well aware that in matters of limitation a right may subsist, but the remedy gets extinguished, therefore, by the conduct of the Appellant himself if he had extinguished his right by not moving the appellate authority in time then a via media cannot be found by urging that even though the Commissioner (Appeals) dismissed the appeal on grounds of limitation, the superior forum should circumvent the bar created against the remedy, which in turn will have the effect of setting aside an otherwise legal and valid order, passed by the Statutory Authority - We, therefore, fail to appreciate and entertain the line of arguments to set aside the order passed by the Tribunal, since it will help him override the law. Appeal dismissed.
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