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TMI Blog2015 (9) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner who is a service provider on the ground that there is delay of 78 days in filing the appeal. 3. It is the contention of Sri.E.I.Sanmathi, learned counsel appearing for petitioner that first appellate authority ought not to have dismissed the appeal on the ground of delay particularly when it was contended that order under challenge was served on the petitioner on 11.09.2012 and as such the appeal filed on 13.09.2012 being well within the time, same ought to have been entertained on merits. It is contended that 1st respondent had passed the order on 31.01.2012 as per Annexure-C whereunder the demand for Service tax and Cess payable thereunder has been affirmed by confirming the show cause notice and amounts already paid came to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is view is fortified by the law laid down by Hon'ble Apex Court in the matter of Jain Spinners Ltd., Vs Collector of Central Excise reported in 1998 (97) ELT 22 (SC). Similar question had also come up before Division Bench of this court in the case of The Director of Mines and Geology Vs The Commissioner of Central Excise (Appeals-II), Bengaluru reported in 2013 (31) STR 275 (Kar) and Division Bench of this court has held since the express provision has stipulated for filing of appeals by fixing the limitation, it would override the provision of Limitation Act, 1963 which is the general law and hence even if there is sufficient cause for condonation of delay beyond six months (in the said case) such delay cannot be condoned. It has been hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for condoning the delay, is not attracted. 7. In the case of an appeal against the said appellate order to the Tribunal, three months time is prescribed for preferring such appeal, whereas in Section 86 no provision is made for condoning the delay. In the absence of any express provision for condoning the delay in Section 86, Section 5 of the Limitation Act is attracted. Therefore, under the scheme of the Act when specific period of limitation is provided under the Act and also for condoning the delay, the discretion, which is vested in the Appellate Commissioner, has to be exercised within the four corners of the law. In other words, if there is a delay in preferring the first appeal under Section 85 and if the delay is upto the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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