TMI Blog2016 (4) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellants are not entitled to avail the benefit of the said Notification. On the issue of condonation of delay beyond 30(thirty) days, we find that The Hon’ble supreme Court in Singh Enterprises’ case (2007 (12) TMI 11 - SUPREME COURT OF INDIA ) held that the 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 upto 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 High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period - Decided against assessee - Excise Appeal Nos. : E/649,650,651,652,653/2010 - Final Order Nos. A/75869-75873/KOL/2015 - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt.Ltd. 30.09.2009 05.01.2010-VA 90.12% 97 days 01.08.2002 3. The principal ground on which the Ld. Commissioner rejected their applications seeking benefit of said Notification No.32/99-CE dated 08.07.1999 as amended, was that the Appellants had failed to submit their applications as stipulated under the said Notification, neither by 30th of September of the respective financial year i.e. 2009 nor within the condonable period of 30(thirty) days, as allowed under the said Notification, even though they have commenced commercial production prior to the said financial year 2009-10. Aggrieved by the said order, the appellants are in Appeal before this Tribunal. 4. Learned Advocate Shri Nihar Dasgupta, assisted by Miss Paulami Sikdar, Advocate submitted that even though the stipulated time prescribed under the said Notification is 30th September to claim benefit of said Notification No.32/99CE, since the value addition certificate as well as balance sheet of the preceding financial year was not ready, therefore, the required Application in claiming the benefit could not be filed by due date of 30.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) is 60(sixty) days, as prescribed under Section 35A of Central Excise Act,1944 and on sufficient cause being shown could be condoned by another 30(thirty) days, any further delay beyond that period cannot be condoned by the Commissioner(Appeals) as he cannot travel beyond the statute. In support, he has referred to the decision of Hon ble Supreme Court in the case of Singh Enterprises v. CCE - 2008(228) ELT 163(SC). 6. Heard both sides and perused the records. Before proceeding to analyze the issue of eligibility of benefit of Notification of 32/99-CE dt.08.07.1999,for delayed application claiming such benefit, it is necessary to visit the relevant clauses of the said Notification under dispute which reads as :- 2.1 [(1) Notwithstanding anything contained in paragraph 2A, the manufacturer shall have the option not to avail the rates specified in the said Table and apply to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, having jurisdiction over the manufacturing unit of the manufacturer for fixation of a special rate representing the actual value addition in respect of any goods manufactured and cleared under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 8. Needless to emphasize the principles of law governing the claim of an exemption Notification is well-settled by now. The Hon ble Supreme Court recently in Meridian Indus. Ltd. s case (supra), reiterating the principle, observed as:- 13. The appellant is seeking the benefit of exemption Notification No.8/97-C.E.. Since it is an exemption notification, onus lies upon the appellant to show that its case falls within the four corners of this notification and is unambiguously covered by the provisions thereof. It is also to be borne in mind that such exemption notifications are to be given strict interpretation and, therefore, unless the assesse is able to make out a clear case in its favour, it is not entitled to claim the benefit thereof. Otherwise, if there is a doubt or two interpretations are possible, one which favours the Department is to be resorted to while construing an exemption notification. 9. In Honda Siel Power Products Ltd. s case (supra), the Honble Supreme Court has observed that the condition of Notification should strictly be followed and in case of any doubt, the same should be resolved in favour of the department. In the said case, the exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Notification, the Commissioner has been vested with the power to accept the application by condoning the delay to a maximum of 30(thirty) days on finding sufficient cause for the delay. Admittedly, the second condition has not been complied with by the Appellants. Therefore, in view of the aforesaid ratios the Appellants are not entitled to avail the benefit of the said Notification. 11. On the issue of condonation of delay beyond 30(thirty) days, we find that The Hon ble supreme Court in Singh Enterprises case(supra) while interpreting the power vested on the Commissioner(Appeals) to condone delay and answering the question whether it could be exercised for delay beyond the statutory limit of thirty days as stipulated under section amended 35A of CEA,1944 observed as: 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provisions prescribe penalty for the failure to comply with such obligation (vide Banarsi Das v. Cane Commissioner, Uttar Pradesh and another reported in AIR 1963 (SC) 1417). Equally, it is well settled that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. In fact in such cases, other methods of performance are necessarily forbidded (vide : State of Uttar Pradesh v. Singhara Singh and others reported in AIR 1964 Supreme Court 358 and A.K.Roy and Another v. State of Punjab and Ors. reported in AIR 1986 Supreme Court, 2060). 17. Bearing in mind the above well settled principles of law and the provisions of the said Rules to the facts of the case in hand, it is apparent that the authorities could not have allowed the applications filed by the Petitioners in exercise of their powers under Rule 6 as those applications were filed beyond the period of sixty days. The question of condonation of delay by the authorities could have arisen only if the applications were filed within the period of sixty days and not otherwise, as on expiry of the period of sixty days, the authorities have no power to condone the delay under R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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