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2023 (4) TMI 10 - CESTAT NEW DELHICondonation of delay in filing appeal - power of Commissioner (Appeals) to condone delay - appellant received the order dated 31.07.2012 passed by the Joint Commissioner on 06.09.2012, but the appeal was filed before the Commissioner (Appeals) only on 20.06.2014 - HELD THAT:- It is clear from the provisions of section 85(3A) of the Finance Act, that an appeal can be filed within two months from the date of communication of the order but if the Appeal is filed after two months but within one month after the expiry of two months, the Commissioner (Appeals) may condone the delay in filing the Appeal if he is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within two months. It, therefore, implies that if the Appeal is filed after one month after the expiry of the initial period of two months, the delay cannot be condoned. This issue was considered by the Supreme Court in Singh Enterprises [[2007 (12) TMI 11 - SUPREME COURT]], the Supreme Court examined the provisions of section 35 of the Central Excise Act, 1944, which is para materia to the provisions of section 85 of the Finance Act, and observed that 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 normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and High Court were justified in holding that there was no power to condone the delay after expiry of 30 days period. As the appeal was preferred before the Commissioner (Appeals) even beyond the extended period of one month after the expiry of the statutory period of two months, it was liable to be dismissed and was rightly dismissed by the Commissioner (Appeals) - It is not possible to accept the contention of the learned counsel for the appellant that the delay in filing the appeal should have been condoned by the Commissioner (Appeals) nor is it possible to examine the contention on merit as to whether the service tax demand could have been confirmed or not. There is, therefore, no error in the order passed by Commissioner (Appeals) - appeal dismissed.
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