TMI Blog2015 (3) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... ll such Courts would render statutory provisions providing for limitation rather otiose. - since admittedly the appellant has not come in a writ petition, an appeal under Section 35G of Act, 1944 has come up before this Court. Even Uttrakhand High Court dismissed appeal, preferred by party [2014 (3) TMI 419 - UTTARAKHAND HIGH COURT], holding that delay was not condonable. So far as indulgence granted by Nainital High Court against recovery was in the writ petition, which has come up before this Court on the ground that recovery was patently illegal and without jurisdiction and nonest, but, no indulgence was granted in appeal preferred by assessee. - Decided against the assessee. - Central Excise Appeal No. - 39 of 2015 - - - Dated:- 13-3-2015 - Hon'ble Sudhir Agarwal And Hon'ble Shashi Kant,JJ. For the Appellant : Bidhan Chandra Rai For the Respondent : Ashok Singh, S.S.C. ORDER (Delivered by Hon'ble Sudhir Agarwal, J.) 1. Heard Sri Bidhan Chandra Rai, learned counsel for appellant and Sri Ashok Singh, learned counsel appearing for respondent. 2. This is an appeal under Section 35G of Central Excise Act, 1944 (hereinafter referred to as ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 057/- and confirmed demand of ₹ 14,15,057/- under Rule 14 of Rules, 2004 read with Section 11A of Act, 1944. It also imposed liability of interest on the aforesaid demand under Rule 14 of Rules, 2004 read with Section 11AB of Act, 1944. On the said demand, a penalty of the same amount of ₹ 14,15,057/- under Rule 15(2) of Rules, 2004 read with Section 11AC of Act, 1944, was imposed. 6. Appellant preferred an appeal under Section 35 of Act, 1944, before Commissioner (Appeals), vide memo of appeal dated 13th July, 2012, wherein it was admitted that copy of order dated 24th June, 2011, was received by appellant in the month of July, 2011, but appeal could not be filed within the period of limitation of 60 days, due to reason that unit was closed and Managing Director Sri Rajeev Agarwal was suffering since long due to ailment (Chronic Kidney Disease [Stage-V], Diabetes Mellitus Type - II and Hypertention). It was also stated that the family of Managing Director was at Kolkata where he was undergoing treatment at Apollo Gleneagles Hospital, Kolkata and staff and officials had left the job. 7. In the application, filed alongwith appeal under Section 35, praying for dispe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. 12. Appeal before Commissioner is admissible under Section 35(1) of Act, 1944, which reads as under :- 35. Appeals to [Commissioner (Appeals)].- (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a [Commissioner of Central Excise] may appeal to the [Commissioner of Central Excise (Appeals)] [hereafter in this Chapter referred to as the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of such decision or order: [Provided that 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.] 13. Period of limitation prescribed under Section 35(1) is 60 days from the date of communication of order, whereagainst appeal is preferred. Proviso to Section 35(1) of Act, 1944 confers power upon appellate authority i.e. Commissioner (A) to condone delay, if period is higher than 60 days, but within further period of 30 days. In other words, period of limitation including the period condonable is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that there was no power to condone the delay after the expiry of 30 days period. (emphasis added) 16. The above judgment clearly shows that Apex Court also held that Section 5 of Limitation Act is completely excluded in its application to Section 35 of Act, 1944. There the Court proceeded to consider argument that in writ jurisdiction, delay beyond 90 days, could have been condoned by High Court. Firstly, the Court considered explanation and found unacceptable. Having said so, Court also held that judgment in I.T.C.'s Case (Supra) has not rendered any law that even where statute presecibe a particular period of limitation, High Court or Supreme Court can direct for condonation. Court categorically said that all such Courts would render statutory provisions providing for limitation rather otiose. Relevant observations read as under :- I.T.C.'s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then drew our attention to a Division Bench judgment of High Court of Uttrakhand at Nainital passed in two connected matters that Central Excise Appeal No. 5 of 2009 - M/s Himgiri Ispat (P) Ltd. Vs. The Custom Excise Service Tax Tribunal and Another and Writ Petition (MS) No. 649 of 2009 - M/s Himgiri Ispat (P) Ltd. Vs. The Union of India and Others decided by a common judgment dated 6th March, 2014. We find that therein also appeal preferred under Section 35 after maximum period of limitation was rejected on the ground that delay beyond 90 days was not condonable by appellate authority. Order of appellate authority was confirmed by Tribunal, whereagainst assessee preferred appeal before High Court, but High Court also upheld the view taken by Tribunal and dismissed the appeal. 22. It appears that simultaneously challenging order of Central Excise Authority, with regard to recovery which was subject to appeal, a writ petition was also filed by M/s Himgiri Ispat (P) Ltd. The Court said that even if appeal filed with delay which could not have been condoned therein, due to specific statutory provision, that will not restrain High Court from looking into the correctness of order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and owing by the assessee cannot be recovered from the properties of the appellant, who is a bona fide purchaser in auction. 5................. 23. We find that even aforesaid observations made in the judgment by Nainital High Court would not help appellant in the case in hand, since admittedly the appellant has not come in a writ petition, an appeal under Section 35G of Act, 1944 has come up before this Court. Even Uttrakhand High Court dismissed appeal, preferred by same party, holding that delay was not condonable. So far as indulgence granted by Nainital High Court against recovery was in the writ petition, which has come up before this Court on the ground that recovery was patently illegal and without jurisdiction and nonest, but, no indulgence was granted in appeal preferred by assessee. 24. Before us, assessee has come up in appeal under Section 35G and this is no writ petition. Therefore, even aforesaid decision lends no help to appellant. 25. Further question, whether present appellant may challenge order passed by Joint Commissioner, Central Excise in a writ petition does not arise in this appeal and therefore it is not required to be considered. 26. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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