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M/s. Hindustan Apparel Industries Versus The Assistant Commissioner of Customs (EPCG)

2015 (4) TMI 114 - MADRAS HIGH COURT

Condonation of delay - Inordinate delay of 1346 days - Power of Commissioner to condone delay u/s 128 - Held that:- the appeal has been filed with a delay of 1346 days. It is to be noted that the proviso to Section 128 (1) enables the Commissioner (Appeals) permits the filing of the appeal beyond the sixty days provided that he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the sixty days prescribed. In fact, while exercising such discretionar .....

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athan,JJ. For the Petitioner : Mr.Hari Radhakrishnan For the Respondent : Mr. A. P. Srinivas ORDER The Writ Petitions in W.P.Nos.54457 and 5458 of 2015 have been filed, praying for the relief of issuance of a writ of ceriorari to call for the records pertaining to the Order-in-Original No.15733/2011 dated 25.04.2011 of the 1st respondent and the Notice dated 01.01.2015 in C.No.HQRS/ARC/38/2014-Hyd-IV of the 2nd respondent and quash the same respectively. 2.It is the case of the petitioner that t .....

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eals dismissed the appeal preferred against the said order In the Order in appeal No.57 of 2015 dated 30.1.2015 holding that he has no power to condone the delay. The 2nd respondent issued a demand notice dated 1.1.2015 for payment of duty along with interest as per the impugned order-in-original No.15733 of 2011 dated 25.4.2011. Hence, the present writ petitions are filed challenging the impugned order passed by the 1st respondent and the 2nd notice issued by the 2nd respondent. 3. Heard the le .....

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) 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. (1-A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing; Provided that no such adjournment shall be .....

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The proviso to Section 128 (1) enables the Commissioner (Appeals) to permit the filing of the appeal beyond the sixty days referred to above provided that he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the sixty days prescribed. However, on a plain reading of the proviso, it does appear that the Commissioner (Appeals) can exercise such power only within a "further period of thirty days". In other words, the appeal can be filed onl .....

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e appellant was prevented by sufficient cause from presenting the appeal within the sixty days prescribed. In fact, while exercising such discretionary power, the authority can condone the delay upto 90 days on sufficient cause shown by the petitioner for not filing the appeal in time. The present appeal was beyond the statutory period of 90 days and the authority has rightly rejected the same, since he cannot be expected to exercise his discretionary power beyond the permissible period that was .....

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ing creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short the Limitation Act ) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date .....

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tion (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the .....

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e reference application under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the period prescribed, by applying Section 5 of the Limitation Act, 1963 and while answering in the negative, the Supreme Court has held in para 3 to 37 as under: 35. It was contended before us that the words expressly excluded would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In .....

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sions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the .....

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etation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act. 37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the reference application filed by the Commissioner under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation. 9. The Customs Act, 1962 itself is a complete Code. Reading va .....

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