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2018 (8) TMI 690

und cited by the appellant that the person in charge of Excise matter left the job and the matter could not go to the commercial head of the company who was out of station in connection with audit in Chennai plant appear to be reasonable. - The delay of 79 days is condoned and the order passed by the Commissioner (Appeals) is set aside. The matter is remanded back to the Commissioner (Appeals) for fresh adjudication. - Appeal No. ST/86302/18 - A/86775/2018 - 21-6-2018 - Dr. Suvendu Kumar Pati, Member (Judicial) Ms. Mithila Shelar, Advocate for the appellant Shri Dilip Shinde, (AR) for the respondent ORDER Refusal by the Commissioner (Appeals) to condone the delay of 79 days to file appeal against adjudication order passed by the Joint .....

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the Tribunal. 3. On rival submission of parties, it can be held that there was admitted delay of 79 days inclusive of 30 days condonable period available with the Commissioner but the ground cited by the appellant that the person in charge of Excise matter left the job and the matter could not go to the commercial head of the company who was out of station in connection with audit in Chennai plant appear to be reasonable. Procedure is a handmade of judiciary system enumerated to put a curb on the uncertainty and bring an end to the litigation but on that score alone, substantial justice cannot be jeopardised. 3.1 The other grounds mentioned in the appeal memo including classification of taxable service and tax liability of the appellant is .....

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any maistake apparent on record is noticed, the court may rectify the same on its own; and (ii) If any mistake is brought to its notice by either of the parties to the appeal, its shall make such amendment. 2. Being empowered by such discretionary power referred in point no.(i) above and spirited by the order of the Hon ble Apex court cited supra, the following amendments by way of rectification is made to the order pronounced on dated 21.06.2018 3. It was pointed out during the course of hearing of appeal by ld. AR Shri Dillip Shinde for the respondent that in Singh Enterprises case, power of Hon'ble High Court/Hon'ble Supreme Court to direct condonation of delay when the statute prescribed particular period of limitation was discu .....

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the period of 30 days after expiry of 60 days, which was the normal period for preferring appeal and therefore the argument by the Appellant that Section 5 of the Indian Limitation Act, 1962 can be invoked for Condonation of Delay was not sustainable. Rather the Hon'ble Apex Court had held that there was complete exclusion of Section 5 of the Limitation Act. It was also held by the Hon'ble Supreme Court in the said decision that in the case law referred, there was no law declared by this Court (SC) that even though the statute prescribed a particular period of limitation this Court can direct condonation. While holding that such a situation would render a specific provision providing for limitation otiose, the Hon'ble Supreme Co .....

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the delay. 8. Be that as it may, from the ratio of Singh Enterprises it cannot be said that only because prescribed period of limitation was over, the Hon'ble Supreme Court declined to interfere in the order since the ground taken by the appellant therein, viz. closure of factory and lack of experience in business attributed to such delay, was not acceptable to the Hon'ble Supreme Court as the Division bench had observed that the causes shown for condonation have no acceptable value. 9. Going by the bare comparison between the proviso to Section 35 dealing with power of the Commissioner (Appeals) permitting Appellant to present appeal after 60 days (not exceeding 30 more days) and the Section 35 (B) sub-Section 5 in admitting appeal .....

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prescribed for any suit, appeal or application by any such special or local law, the principles contend in Section 4 to 24 may be resorted to advance the cause of justice and not to abort the proceedings on narrow technical grounds though the policy concerning such stipulation of time in intended to afford protection to litigants. The principle of the saving clause under Section 29 of Limitation Act may also be taken into consideration since the jurisdiction of this Appellate Tribunal has not been expressly excluded. This reasoning is further fortified by the fact that Article 323B (i) of the Constitution of India empowers this Tribunal to deal with any matter incidental to the matter specified in clause (a) to (h) including levy, assessmen .....

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