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2015 (4) TMI 322 - MADRAS HIGH COURT

2015 (4) TMI 322 - MADRAS HIGH COURT - TMI - Condonation of delay - Inordinate delay of 1085 days - Power of Commissioner to condone delay beyond condonable period - Held that:- It is to be noted that under Section 85(3) of the Finance Act, the appeal to Commissioner (Appeals) was to be filed within three months from the date of communication of the order and as per the proviso to Section 85(3), a further period of three months could be granted where sufficient cause was shown. The Commissioner .....

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Court is of the view that the delay which is beyond the statutory period of limitation, cannot be condoned. Court is not inclined to grant the relief sought for in the writ petition and the same are dismissed - Decided against assessee. - WP No. 6608 of 2015 - Dated:- 18-3-2015 - S. Vaidyanathan,J. For the Appellant : Mr K Jayachandran For the Respondent : Mr V Sundareswaran ORDER The Writ Petition has been filed praying for the relief of issuance of a writ of ceriorari to call for the records r .....

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ainst the said order, the petitioner obtained interim order dated 7.12.2007 in M.P.No.1 of 2007 in W.P.No.36541 of 2007 from this Court granting stay of pre-deposit and by final order dated 24.12.2012 in W.P.No.36541 of 2007 directed the Tribunal to dispose of the appeal without pre-deposit. The Additional Commissioner by order dated 26.1.2011 confirmed the demand of ₹ 97,11,679/- towards service tax, education cess and Secondary and Higher Education Cess covering the period from October 2 .....

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l has been filed with a delay of 1085 days. It is to be noted that under Section 85(3) of the Finance Act, the appeal to Commissioner (Appeals) was to be filed within three months from the date of communication of the order and as per the proviso to Section 85(3), a further period of three months could be granted where sufficient cause was shown. The Commissioner (Appeals) has no power to condone such abnormal delay. 5. In a similar matter, while considering the delay in filing appeal under Sect .....

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oner (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 only up to 90 days from the date of communication of t .....

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ich is pari material to Section 128(1) of the Customs Act and observed as under in para 8: "8. The Commissioner of Central Excise (Appeals) as also the Tribunal being 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 .....

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he appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (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 3 .....

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se versus Hongo India Private Limited and another" (2009) 5 SCC 791, wherein, the question for determination came up before it, was whether the High Court has power to condone the delay in presentation of the 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 bef .....

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provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions 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 na .....

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