TMI Blog2019 (2) TMI 1505X X X X Extracts X X X X X X X X Extracts X X X X ..... fied that the appellant was prevented by sufficient cause from presenting the appeal within the period of 60 days, allow it to be presented within a further period of 30 days. On reading of provisions of sub-section (1) of Section 128 of the Act and the first proviso appended thereto, it reveals that the Commissioner (Appeals) is not empowered under the statute to condone the delay, if the appeal is preferred beyond 90 days from the date of receipt of the adjudication order. The time consumed between filing of writ petition and subsequent disposal thereof by the Hon’ble Allahabad High Court vide order dated 14.07.2017 should be excluded for the purpose of computation of limitation period in terms of Section 14 of the Limitation Act, 1963 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it as per the mandates of Section 129 E of the Act for filing of appeal before the Commissioner (Appeals). However, he submitted that for filing of appeal before the Tribunal, the requirements of Section 129 E have duly been complied with inasmuch as the appellant had deposited 10% of the disputed amount at the time of filing of appeal before the Tribunal. Thus, he submits that since the requirement of the statutory provisions regarding pre-deposit of the percentage of adjudged amount of demand has already been complied with, the appeal should be entertained by the Tribunal. With regard to filing of appeal beyond the statutory time limit before the office of Commissioner (Appeals), the Learned Advocate submitted that feeling aggrieved with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rprises vs Commissioner of Central Excise, Jamshedpur 2008 (221) E.L.T. 163 (S.C.) 4. Heard both sides and perused the records. 5. Section 128 of the Act deals with the provisions of filing of appeal before the Commissioner (Appeals). As per the statutory mandate, the appeal has to be filed within 60 days from the date of the communication of decision or order to the aggrieved party. In the proviso clause appended to sub-section (1) of Section 128 of the Act, it has been stated that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of 60 days, allow it to be presented within a further period of 30 days. On reading of provisions of sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the office of the Commissioner (Appeals). The event of filing of writ petition within a reasonable time, disposal of the same by the Hon ble Allahabad High Court and subsequent filing of appeal before the office of the Commissioner (Appeals) transpires that the appellant was diligently pursuing its statutory remedy for resolving the dispute. Thus, in my considered view the time consumed between filing of writ petition and subsequent disposal thereof by the Hon ble Allahabad High Court vide order dated 14.07.2017 should be excluded for the purpose of computation of limitation period in terms of Section 14 of the Limitation Act, 1963. After receipt of order of the Hon ble Allahabad High Court, since the appellant had preferred appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts transpire that the appellant was diligently perusing its remedy for resolving the dispute. On perusal of the correspondences exchanged between the appellant and the Central Excise Department, it would reveal that the appellant was not guilty of negligence or lapse or inaction for delaying the process in filing the appeal before the ld. Commissioner (Appeals) within the stipulated time limit prescribed in the statute. Thus, in my opinion, the case of the appellant should be governed under Section 14 of the Limitation Act, 1963. Therefore, the time exhausted in perusing the matter with the adjudicating authority should be excluded for the purpose of computation of the limitation period provided in the stature for filing the appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
