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2024 (3) TMI 1049 - AT - CustomsCondonation of delay in filing appeal - time limitation - Power of Commissioner (Appeals) to condone the delay - appeal dismissed for the sole reason that not only was the appeal not filed within 60 days from the date of communication of the order to the appellant but was filed even beyond the extended period of 30 days, which period alone could have been condoned by the Commissioner (Appeals) - HELD THAT:- This issue was examined at length by the Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT]. Though the decision is in the context of section 35 of the Central Excise Act, 1944, but the provisions of section 128 of the Customs Act are pari materia with the provisions of section 35 of the Excise Act, as section 35 of the Central Excise Act also provides that an appeal can be filed before the Commissioner (Appeals) within 60 days from the date of communication of the decision or order, but the Commissioner (Appeals) can condone the delay of 30 days after the expiry of the period of 60 days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the stipulated period of 60 days. The Supreme Court held that as the period upto which the prayer for condonation can be accepted is statutorily provided, the contention that section 5 of the Limitation Act, 1963 could be invoked to condone further delay after the expiry of 30 days cannot be accepted. The Supreme Court also observed that the appellate authority had no power to allow the appeal to be presented beyond the period of 30 days as was clear from the provisions of section 35 of the Central Excise Act. The period of limitation for filing the appeal before the Commissioner (Appeals) has to begin from 30.12.2018, on which date the appellant received the order dated 14.12.2018 passed by the Joint Commissioner. Though the letter dated 21.01.2019 said to have been sent by the Joint Commissioner to the learned counsel for the appellant has not been brought on record by the appellant, but what has been stated by the learned counsel for the appellant is that the said letter informed the learned counsel that any communication from the appellant received after 14.12.2018, on which date the Joint Commissioner passed the order, could not have been considered in the impugned order. In any view of the matter, it is the order dated 14.12.2018 that was required to be assailed by the appellant before the Commissioner (Appeals) and indeed it was this order that was assailed. Exchange of communications between the learned counsel and the Joint Commissioner after the passing of the order cannot enure to the benefit of the appellant to claim that the period of limitation would commence from 22.02.2019, on which date the learned counsel for the appellant choose to file a reply to the letter dated 21.01.2019 sent by the Joint Commissioner - The appellant was clearly aware of the fact that it was the order dated 14.12.2018 that was required to be assailed before the Commissioner (Appeals) and this fact has also been stated by the appellant in the Memo of Appeal. Thus, in view of the undisputed position that the appeal was filed by the appellant before the Commissioner (Appeals) on 22.04.2019, beyond the period contemplated under section 128(1) of the Customs Act, the Commissioner (Appeals) committed no illegality in dismissing the appeal as the appeal was filed before the Commissioner (Appeals) not only beyond the period of 60 days from the date the appellant received the order passed by the Joint Commissioner on 30.12.2018, but even beyond the extended period of 30 days, which period alone could have been condoned by the Commissioner (Appeals). This appeal which has been filed to assail the order dated 09.01.2020 passed by the Commissioner (Appeals) is, therefore, without any merit. It is, accordingly, dismissed.
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