TMI Blog2015 (9) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 226 of Constitution of India can condone such delay. When the statue prescribes the period of 90 days as the limitation to file an appeal and there being no provision under the Finance Act, 1994 to condone the delay by first appellate authority, question of entertaining such application for condonation of delay will not be in the domain of appellate authority. - No merit in this petition - Condonation denied. - Writ Petition No. 2578/2015 (T-Res) - - - Dated:- 5-3-2015 - Aravind Kumar, J. For the Petitioner : Sri Sanmathi E I , Adv For the Respondent : None ORDER Heard Sri.E.I.Sanmathi, learned counsel appearing for petitioner and Sri.Jeevan S. Neeralgi, learned panel counsel appearing for respondents. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal dated 31.01.2012 Annexure-C came to be served on the petitioner on 11.09.2012, no material whatsoever came to be produced in support of said contention. Except self serving statement of petitioner there is no material whatsoever available to arrive at a conclusion that order in original dated 31.01.2012 Annexure-C came to be served on petitioner on 11.09.2012 so as to exclude the period from date of order till date of service. In the absence of any proof being tendered petitioner cannot be heard to contend that this court in exercise of power under Article 226 of Constitution of India can condone such delay. When the statue prescribes the period of 90 days as the limitation to file an appeal and there being no provision under the Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal from the date of receipt of the decision or order of such Adjudicating Authority. A proviso to the said provision makes it clear that if the appeal is not filed within three months as prescribed under sub-Section 3 of Section 85, the Commissioner of Central Excise (Appeals) is vested with the power to condone the delay if sufficient cause is made out for the delay in preferring the appeal. However, the said delay cannot exceed three months in addition to the period of three months prescribed for preferring an appeal. Therefore, the Act provides for a period of limitation as well as the provision for condoning the delay. Therefore, when an express provision is made for a period of limitation and also for condoning the delay, the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied on of this Court in the case of M/s. Praxair India Pvt. Ltd. vs. Commissioner of Central Excise Service Tax and others reported in 2011-TIOL-180-HC-KAR-CX, the question for consideration was whether the Tribunal was justified in dismissing the appeal on the ground of delay of 229 days on the ground that the cause shown is not the sufficient cause. That is not the position in this case. In this case the question is whether the Appellate Commissioner was justified in dismissing the appeal on the ground of limitation as the delay was more than three months after the expiry of three months prescribed for filing an appeal after receipt of copy of the order. Therefore, the order passed by both the authorities is legal and valid and does no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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