TMI Blog2013 (9) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... only thirty days after expiry of sixth days which was the preliminary limitation period for preferring an appeal - in the absence of any Clause to condone the delay by showing sufficient cause, there was complete exclusion of Section 5 of the Limitation Act. The appellate authority was a creature of the Statute vested with jurisdiction to condone the delay but not beyond the period permissible under the Statue - The period upto which the prayer for condonation can be accepted was statutorily provided - The failure to file an appeal within the time stipulated under Section 3 5 of the Act, did not entitle the petitioner to condonation of delay of the period beyond the period prescribed under the Statute - the petitioner should have filed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-authorities to furnish a copy of the said order. That letter, it is stated, was responded by a communication enclosing a copy of the order and inter-alia pointing out that the petitioner had received the copy of the order-in-original on 3.5.2012. Petitioner acknowledged receipt of a copy of the order on 10.12.2012 and there afterwards preferred an appeal along with an application to condone the delay. 2. The Appellate Authority having returned the appeal without passing an order on the application for condonation of delay, led to the petitioner filing W.P.No.18255/2013, which was disposed off recording the submission of the learned counsel for the respondent-Revenue that the petitioner's application to condone the delay would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than three times to a party during hearing of the appeal] (2) Every appeal under this Section shall be in the prescribed form and shall be verified in the prescribed manner." Section 37(C) of the Act reads thus:- "37C. Service of decisions, orders, summons, etc.-(1) Any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served,- (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorized agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof, to some conspicuous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner should have filed the appeal within sixty days and in terms of the proviso extended by another thirty days. Under Section 35, the Commissioner has no authority or jurisdiction to allow the appeal to be presented beyond the period of thirty days. The legislature having intended the appellate authority to entertain the appeal by condoning the delay only upto thirty days after expiry of sixty days period after preferring the appeal, there is complete exclusion to the application of Section 5 of the Limitation Act. 5. The expression in Section 34 of the Act "from the date of communication of said order" must be read in conjunction with Section 37(C) of the Act, since, service of decisions or orders or summons is by special modes, one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submission of the petitioner that the security agency engaged by it did not make available the order-in-original, though received by registered post acknowledgment due, is not a formidable legal ground to contend that the petitioner was not communicated with the order in original, Aanexure-"C". 6. The failure to file an appeal within the time stipulated under Section 3 5 of the Act, did not entitle the petitioner to condonation of delay of the period beyond the period prescribed under the Statute. 7. In Commissioner of Customs and Central Excise vs. Hongo India (P) Limited and another [(2009) 24 VST 298 (SC)] a three Judge Bench of the Apex Court having regard to the provision for filing an appeal under the Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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