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TMI Blog2023 (3) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim under Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 27/2012-CE(NT) dated 18.6.2012 which were rejected by the adjudicating authority and on appeal filed by the appellant, the refunds were allowed by the Director General of Performance Management vide Order-in-Appeal dated 21.5.2018 . Thereafter the adjudicating authority vide order dated 6.12.2018 sanctioned the refund of Rs.70,71,607/-. Since the said authority did not grant any interest on refund therefore the appellant challenged the said order dated 6.12.2018 (served upon the appellant on 13.12.2018) by way of appeal before the learned Commissioner (Appeals) on 11.4.2019. Admittedly the appeal was filed after lapse of 58 days from the prescribed statutory time limit of two months and therefore the learned Commissioner dismissed the same on the ground of limitation. 4. Learned counsel for the appellant submits that this Tribunal has power to condone the delay. He further submits that there was sufficient cause for not filing the appeal within the statutory prescribed period before the learned Commissioner. The explanation given by learned Counsel was that the person in-charge in the appellant company suddenly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month." The aforesaid provision prescribes that an appeal before the Commissioner can be presented within two months from the date of receipt of the Order of the adjudicating authority. The proviso thereto unequivocally lays down that in case of delay in presenting the appeal, the discretion of the Commissioner (Appeals) in considering application for condonation of delay is restricted to one month only. If the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, he has the jurisdiction to allow it to be presented within a further period of one month. Thus, the total period, including the extended period to prefer an appeal under Section 85 of the Act, 1994, is three months. The provision of Section 35 of the Central Excise Act, 1944 which is parimateria with Section 85(3A) of the Finance Act, relating to appeals before Commissioner (Appeals) had come up for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion to condone the delay. The relevant paragraph of the said decision is reproduced as under:- "16. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory." Therefore the application of Limitation Act has been ruled out by the Hon'ble Supreme Court. So far as the decision of the Tribunal in the matter of Yapp India (supra) is concerned, this Tribunal in the matter of Diamond Construction vs. Commr. of Cus., C.Ex. & S.T., Jabalpur; 2020 (35) GSTL 193 (Tri.-Del.) has held that the decision in Yapp India (supra) is contrary to the law laid down by the Hon'ble Supreme Court in Singh Enterprises (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrepreneur cannot carry on production activities in absence of GST registration. Resultantly, his right to livelihood would be effected. Since his statutory appeal suffered dismissal on technical ground, we cannot allow the situation to continue. We find that, in the facts and circumstances of this case it would be appropriate to exercise our jurisdiction under Art.226 of the Constitution of India. xxx xxx xxx" 8. In the matter of Albert & Company Pvt. Ltd. vs. CST, Chennai; 2015(37) STR 187 (Mad.), as placed on record on behalf of Revenue, it has been specifically held by the Hon'ble High Court, while interpreting Section 85(3) ibid, that the Tribunal has no power or authority to extend the period of limitation prescribed by the statute for entertaining the appeal. Similar issue, regarding the condonation of delay beyond the period specified in the statute in filing appeal, came up for considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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