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TMI Blog2021 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22.7.2018. Section 128 of the Customs Act provides that any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within sixty days from the date of communication to him of such decision or order but 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. 3. Ms. Harsimran Kaur, learned counsel for the appellant submitted that though the appeal may have been filed even after ninety days from the date of communication of the order, but the short delay could still be condoned by the Commissioner (Appeals) by excising powers under section 5 of the Limitation Act 1963 - the Limitation Act. Learned Counsel, also submitted that even if the Commissioner (Appeals) could not have condoned the delay beyond the extended period of thirty days, still the Tribunal can condone the delay by using its discretionary power. In this connection learned counsel relied upon the following decisions: (i) Collector, Land Acquisition Anantnag and Another vs. MST. Katiji and others 1987 (28) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. CCE, Jamshedpur - 2008 (221) E.L.T. 163 (S.C.) . The Supreme Court examined the provisions of section 35 of the Central Excise Act, 1944, which are para materia to the provisions of section 128 of the Customs Act and observed that the delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days, which is normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and High Court were justified in holding that there was no power to condone the delay after expiry of 30 days period and that the provisions of the Limitation Act would not be applicable. Paragraphs 8, 9 and 10 of the judgment are reproduced below: "8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs." (emphasis supplied) 9. The aforesaid decision of the Supreme Court in Singh Enterprises emphasises that the language to the proviso to section 35(1) of the Central Excise Act makes it clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the normal period of limitation of sixty days. In such circumstances, the Supreme Court held that there is complete exclusion of section 5 of the Limitation Act. 10. A Division Bench of the Tribunal in Diamond Construction vs. Commr. of Cus., C. Ex. & S.T., Jabalpur 2020 (35) G.S.T.L. 193 (Tri.-Del.), in which the provisions of section 85 (3A) of the Finance Act 1994 relating to appeals to the Commissioner of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner (Appeals) dismissed the appeal after placing reliance on the decision of Supreme Court in Singh Enterprises." (emphasis supplied) 11. The Delhi High Court also examined a similar situation in Uttam Sucrotech International (P) Ltd. vs. Union of India 2011 (264) E.L.T. 502 (Del.) and observed as follows: "13. In view of the aforesaid, there can be no scintilla of doubt that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days after expiry of initial 60 days. In the case at hand, the admitted position is that the order passed by the adjudicating officer was received by the petitioner on 29th August, 2006. The appeal was preferred on 28th November, 2006. The Commissioner excluded the date of receipt of the order in- original by the petitioner in terms of provision contained in Section 35-O and took note of the fact that the appeal was presented on the 91st day of the period commencing after the said date of receipt, i.e., one day beyond the condonable period of 30 days and, hence, the same could not have been condoned. Similar view has been expressed by the revisional authority." (emphasis supplied) 12. The decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 16. With respect, it is not possible to accept the view taken by the learned Member in the aforesaid decision. The Supreme Court in Singh Enterprises did observe that "the Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided in the Statute‟, which means that the delay of thirty days beyond the period of sixty days prescribed in the Statute can be condoned. This is what was stated by the Supreme Court in the next sentence that "the period upto which the prayer for condonation can be accepted is statutorily provided‟. Section 35B of the Central Excise Act 1944, on which reliance has been placed in the aforesaid decision by the learned Member deals with Appeals to the Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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