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2017 (12) TMI 1383

Maintainability of appeal - time limitation - condonation of delay of 48 days - Held that: - there is no infirmity in the impugned order because as per Section 85(3A), the appeal before the Commissioner (A) has to be filed within 60 days from the date of communication of the order - reliance placed in the case of Singh Enterprises vs. CCE, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT OF INDIA] wherein it was made clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only upto 30 days after the expiry of 60 days which is the normal period of preferring appeal - appeal dismissed. - ST/23588/2014-SM - Final Order No. 23229 / 2017 - Dated:- 19-12-2017 - Shri S. S. Garg, Judicial Member Mr. A. .....

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under Rule 15(3) of the CCR, 2004. Thereafter Additional Commissioner vide OIO dated 22.10.2013 confirmed the demand and penalty as proposed in the show-cause notice. The payment of duty along with interest was paid before the issue of show-cause notice and the same has been acknowledged in the show-cause notice also. Aggrieved by the order, the appellant filed appeal before Commissioner (A) on 19.2.2014 whereas the due date for filing was 2.2.2014 as per the Additional Commissioner s order. There was a delay of 17 days in filing the appeal with reference to the time limit provided in the order. The condonation of delay application was also filed along with appeal. Thereafter by the impugned order, the Commissioner (A) rejected the appeal .....

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days he does not have the power to condone the delay and in this case there was a delay of 48 days after the expiry of due date for filing the appeal. Learned Commissioner (A) in support of his submission relied upon the judgment of Hon ble Supreme Court in the case of Singh Enterprises vs. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC). and has rightly dismissed the appeal since condoning the delay beyond 30 days is not within his power. The learned AR further submitted that wrong mentioning of the period of filing appeal of three months in preamble of the adjudication order cannot override the statutory time limit of filing the appeal. In support of this submission, he relied upon the Division Bench decision of this Tribunal in the .....

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he appeal before the Commissioner (A) has to be filed within 60 days from the date of communication of the order. Here it is relevant to reproduce Section 85(3A) of the Finance Act, which is as under: Section 85. Appeals to the Commissioner of Central Excise (Appeals). - (3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter : Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two m .....

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