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2016 (1) TMI 927 - CALCUTTA HIGH COURT

2016 (1) TMI 927 - CALCUTTA HIGH COURT - TMI - Condonation of delay in filing of appeal before Commissioner (appeals) - delay of 104 days - Held that:- law is the Commissioner and the High Court has no power to admit an appeal where it is filed beyond the statutory time limit prescribed in the statute including the condonable period. Though the ‘Order' passed in ITC Ltd. [1990 (8) TMI 173 - SUPREME COURT OF INDIA] is strongly relied on by the appellant, the same is not applicable as the said ‘Or .....

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n under section 35G of the Central Excise Act, 1944 read with Section 85(3A) of the Finance Act, 1994 has been filed by the M/s. Metal Scrap Trading Corporation praying for stay of the order dated 23rd September, 2015 passed by the Central Excise & Service Tax Appellate Tribunal, East Zonal Bench, Kolkata on Stay Petition Nos.SP 71223,71224/13 arising out of Appeal No.ST-71182,71183/13 (M/s.Metal Scrap Trading Corporation Ltd. v. Commissioner of Service Tax, Kolkata) and for admission of the .....

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as in the statutory format of appeal it was mentioned that the appeal must be filed within 3 (three) months from the date of communication of the order and as the said stipulation does not include the period of delay in filing appeal, the CESTAT went wrong in dismissing the appeal by holding that the appeal filed before the learned Commissioner with delay of 104 days was beyond the statutory period of 60 days and the condonable limit is 30 days and the Commissioner was not vested with the author .....

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er the format an appeal must be filed within three months meaning thereby it should be filed within 60 days; if not, the condonable limit is 30 days. As admittedly, appeal was presented even after 90 days, this appeal may not be admitted. Heard learned advocates for the parties. In Singh Enterprises v. Commissioner of Central Excise, Jamshedpur : 2008 (221) E.L.T. 163 (SC) it has been held as under : "…..The language used makes the position clear that the legislature intended the app .....

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: "..As seen under the Act, a fiscal statute, an appeal has to be presented within sixty days. However, an appeal can be presented beyond sixty days but within a further period of thirty days if it can be shown that the appellant was prevented by sufficient cause from presenting the appeal within sixty days. So, an appeal can be presented at the most within ninety days. In the instant case, the statutory appeal before the Commissioner was preferred even beyond the statutory period of limita .....

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