TMI Blog2017 (10) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 17-10-2017 - Shri S. S. Garg, Judicial Member Shri JS Bhanu Murthy, Adv. For the Appellant Shri M Saran, AR For the Respondent ORDER Per : S. S. Garg The appellant has filed a miscellaneous application seeking condonation of delay of 135 days in filing the appeal. 2. Briefly the facts of the present case are that the order-in-original dated 20.04.2016 was issued by the Asst. Commissioner of Central Excise and the same was received on or about April 2016 by the Security Officer of the petitioner company and the last date for filing the appeal against the said order was two months from the date of receipt of the order i.e. 24.06.2016. But the appeal was filed before the Commissioner (A) on 09.11.2016 along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdictional officer of the Central Excise department enquiring the status of the order as to whether the petitioner preferred an appeal against the order-in-original. It was only upon such enquiry, the team handling the Customs Excise matters realized that they have misplaced the order and after the search, the order was recovered and thereafter, the appeal was filed. But in the process, the delay was caused. He further submitted that the appeal could not be filed before the Tribunal in time because the impugned order was not traceable and further he has given the same reasons which he has given before the Commissioner for seeking the condonation of delay. 5. The Learned Counsel further submitted that the delay in filing the present appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from filing the appeal within 60 days from the date of receipt order i.e. 24.06.2016, then Commissioner (A) has the powers to condone the delay of 30 days which means that in any case, the appeal had to be filed within 90 days whereas in this case, the appeal was filed after 137 days and as per the statute, the Commissioner cannot condone the delay beyond 30 days. Therefore, the Commissioner (A) by relying upon the decision of the Supreme Court in the case of Singh Enterprises Vs. CCE - 2008 (221) ECT 163 (SC), has held that the Commissioner (A) has no powers to condone the delay beyond 30 days. The Hon ble Supreme Court has held that section 5 of the Limitation Act is excluded. Para 8 of the decision is reproduced herein below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 7. Further, in view of the fact that the delay caused in filing the appeal before the Commissioner (A) was beyond his condonable limit, and therefore this Court also does not have the power to condone the delay beyond condonable limit as held by the Supreme Court in the case of Singh Enterprises cited supra. In view of the said legal position, I do not find any ground to condone the delay in filing the appeal and I dismiss the Condonation of Delay application and consequently the appeal is also dismissed. ( Order was pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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