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TMI Blog2019 (11) TMI 1680X X X X Extracts X X X X X X X X Extracts X X X X ..... ants- 'Mahendra Trading Company & Anr.' filed application under Section 9 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) for initiation of the 'Corporate Insolvency Resolution Process' against 'Hindustan Controls & Equipment Private Limited'- ('Corporate Debtor'). The Adjudicating Authority (National Company Law Tribunal) Kolkata Bench, Kolkata by impugned order dated 19th January, 2018 rejected the application on the ground of pre-existence of dispute and other grounds. 2. Learned counsel appearing on behalf of the Appellants submitted that there is no pre-existence of dispute and the so-called arbitration proceeding is not an arbitral proceeding in terms of the Arbitration & Conciliation Act, 1996. 3. The Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01. 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y contained under the Companies Act 2013, any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days." 6. The aforesaid provision of Section 61(2) makes it clear that the appeal has to be preferred within 30 days and the power of condonation is only for 15 days' del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 30 days from 29th January, 2018, 30 days will be completed as on 27th February, 2018. 11. In the 'Central Excise Act, 1944', there is no mandate under the Act to provide free certified copy to the aggrieved person nor such provision has been made in the Rules framed thereunder. Therefore, the decision in "Singh Enterprises v. Commissioner of Central Excise" (Supra), as referred to by the counsel for the Respondent, cannot be directly applicable in the present case for the purpose of counting the period of limitation. 12. The appeal thereafter preferred on 5th March, 2018 and as such it is to be held that the appeal has been filed after 6 days of completion of 30 days. Further, having noticed that the letter dated 29th January, 2018 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcutta Electric Traders Association' of which 1st Appellant is a member alleging non-clearance of the amount by the 'Corporate Debtor'. On the request of the 1st Appellant ('Operational Creditor'), the 'Calcutta Electric Traders Association' by letter dated 31st August, 2017 intimated the Managing Director of 'M/s. Hindustan Controls and Equipment Pvt. Ltd.'- ('Corporate Debtor') that the 1st Appellant has informed that the 'Corporate Debtor' is not clearing the amount and, therefore, requested the 'Corporate Debtor' to assign reasons for non-payment of the amount and to file reply so as to take further course of action. The letter dated 31st August, 2017 is extracted below: 17. In the eye of law, there is no arbitration proceeding pending ..... X X X X Extracts X X X X X X X X Extracts X X X X
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