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2022 (4) TMI 215 - AT - CustomsCondonation of delay in filing appeal - appeal filed beyond the period of limitation contemplated under section 128 of the Customs Act, 1962 - HELD THAT:- It would seen from provisions of Section 128, that an appeal can be filed before the Commissioner (Appeals) within sixty days from the date of communication to him of such decision or order. However, the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. Thus, at best the delay of thirty days beyond the stipulated limit of sixty days in filing the appeal by can be condoned, provided of course that the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of sixty days. This issue came up for decision before the Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT]. The Supreme Court examined the provisions of section 35 of the Central Excise Act, 1944, which are para materia to the provisions of section 128 of the Customs Act and observed that the delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days, which is the normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and the High Court were justified in holding that there was no power to condone the delay after the expiry of 30 days period and that the provisions of the Limitation Act would not be applicable. A Division Bench of the Tribunal in M/S DIAMOND CONSTRUCTION, M/S SAI SHREE CONSTRUCTION VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX [2019 (2) TMI 1822 - CESTAT NEW DELHI], in which the provisions of section 85 (3A) of the Finance Act 1994 relating to appeals to the Commissioner of Central Excise (Appeals) came up for consideration, after placing reliance upon the decision of the Supreme Court in Singh Enterprises, observed that the discretion of the Commissioner to condone the delay is circumscribed by the conditions set out in the proviso and any delay beyond that period cannot be condoned. In the present case, it is not in dispute that the order dated 08.01.2014 was received by the appellant on 09.01.2015. The appeal was required to be filed within a period of 60 days from this date and the Commissioner (Appeals) had the power to condone any delay of 30 further days provided the appellant could satisfy, the Commissioner (Appeals) that the appellant was prevented by sufficient cause from presenting the appeal within stipulated period - The Commissioner (Appeals) was, therefore, justified in dismissing the appeal for this reason. Appeal dismissed.
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