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2020 (2) TMI 1008 - CESTAT NEW DELHICondonation of delay in filing appeal - Clandestine Removal - MS ingots - time limitation - limitations to file the appeal before Commissioner Appeals and the mandatory payment @ of 7.5% of the demand confirmed was also made by the Appellant that too within 60 days of receiving the order in original - HELD THAT:- Unless and until there is a statutory mandate of extending the prescribed period to a particular period/number of days that the Section 5 of Limitation Act will be applicable. Section 29 of Limitation Act reiterate the same position that even for special laws in absence of specific provision for extending the prescribed time but for a particular limit that Section 4 to 24 of the limitations Act only will be applicable. However, Section 35 of Special Act i.e. Central Excise Act limits the power of Commissioner Appeals to condone the delay in filing appeal, only to a period of 30 days after the period of 60 days from the date of receipt of the order to be challenged as is filed before him. The said observation is sufficient to hold that in case of Section 35 of Central Excise Act, the power of Commissioner (Appeals) to condone he delay in fling appeals is restricted to a particular period Section 5 & 29 of Limitations Act will not be applicable. Learned Apex Court in the case of Singh Enterprises [2007 (12) TMI 11 - SUPREME COURT] has held that Commissioner of Central Excise Appeals as also the Tribunal being the creatures of statute are vested with the jurisdiction to condone the delay beyond the permissible period provided under the statute. However, where the period upto which the prayer for condonation can be accepted is statutorily provided, the logic of Section 5 of Indian Lamination Act shall not be available for the condonation of delay. Commissioner (Appeals) had no option but to dismiss the appeal being time barred as the delay was more than 30 days. But keeping in view, the power of this Tribunal and that the delay is attributable to the Counsel of the appellant that the said delay is hereby condoned - Since the decision of Commissioner (Appeals) is not on the merits, the matter is remanded back to Commissioner (Appeals) to take decision on the merits of the impugned appeal - Appeal allowed by way of remand.
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