TMI Blog2020 (2) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 35 of Central Excise Act, the power of Commissioner (Appeals) to condone he delay in fling appeals is restricted to a particular period Section 5 29 of Limitations Act will not be applicable. Learned Apex Court in the case of Singh Enterprises [2007 (12) TMI 11 - SUPREME COURT] has held that Commissioner of Central Excise Appeals as also the Tribunal being the creatures of statute are vested with the jurisdiction to condone the delay beyond the permissible period provided under the statute. However, where the period upto which the prayer for condonation can be accepted is statutorily provided, the logic of Section 5 of Indian Lamination Act shall not be available for the condonation of delay. Commissioner (Appeals) had no option but to dismiss the appeal being time barred as the delay was more than 30 days. But keeping in view, the power of this Tribunal and that the delay is attributable to the Counsel of the appellant that the said delay is hereby condoned - Since the decision of Commissioner (Appeals) is not on the merits, the matter is remanded back to Commissioner (Appeals) to take decision on the merits of the impugned appeal - Appeal allowed by way of rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or delay as was shown by the Appellant as the same was sufficient enough to explain the delay. The failure on part of the commissioner to appreciate the same is sufficient for order under challenge to be set aside. It is impressed upon that the appellant was quite vigilant even about the limitations to file the appeal before Commissioner Appeals and the mandatory payment @ of 7.5% of the demand confirmed was also made by the Appellant that too within 60 days of receiving the order in original. The payment proof along with requisite documents was given to the Counsel and the subsequent delay has occurred at Counsel s end for which the Appellant is prayed to not to be burdened with Order-under-challenge is, accordingly, prayed to be set aside and appeal is prayed to be dismissed. 4. Learned DR has laid emphasis on the decision of Hon'ble Supreme court in Singh Enterprises Vs Commissioner of Central Excise, Jamshedpur reported as 2008 (221) ELT 163 (SP) wherein it has been laid down by Hon'ble Apex Court that Commissioner (Appeals) is statutorily bound to not to condone the delay beyond 30 days of the period of 60 days within which the appeal could have been filed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls)] [hereafter in this Chapter referred to as the [Commissioner (Appeals)]] [within sixty days] from the date of the communication to him of such decision or order : [ Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 7. Conjoint reading of all these provisions makes it abundantly clear that unless and until there is a statutory mandate of extending the prescribed period to a particular period/number of days that the Section 5 of Limitation Act will be applicable. Section 29 of Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. Similarly, for Section 48(1) also it was observed that since the provision is nowhere expressively excluding the applicability of provisions of Limitations Act that the provisions of Section 5 thereof shall be applicable and the appellate authority will be competent to condone the delay, in case the sufficient cause has been shown. As discussed above same is not true for Section 35, Excise Act, 1944 as there is a period statutorily provided for which Commissioner (Appeals) could condone the delay. Resultantly, I find no infirmity in the order-under-challenge where the appeal before Commissioner (Appeals) was filed before him after a delay of 215 days. 10. We, simultaneously, observe that Hon ble Apex Court in Singh Enterprises itself has held that a Tribunal also been a creature of statute, is vested with the jurisdiction to condone the delay beyond the permissible period and there is no such period statutorily provided under Section 35B, Central Excise Act, 1944 as is provided in Section 35 of Central Excise Act, 1944 in respect of the appeals which were to be filed before Commissioner (Appeals) to condonation of delay to a particular period. Thus, I am of the opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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