TMI Blog2023 (8) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... sed Representative for the Respondent ORDER This appeal is directed against order in appeal No.442-ST/APPL/LKO/2019 dated 31.07.2019 of the Commissioner (Appeal) Customs GST Central Excise, Lucknow. By the impugned order following has been held:- The impugned order was received by the appellant on 03.01.2019 as declared in the Appeal memo; whereas appeal against the same was filed on 04.04.2019 i.e. after the period of sixty days as stipulated under section 128 (1) of the Customs Act, 1962. Further, a delay of upto thirty days can be condoned as per the said section. However, the present appeal was filed after ninety days from the date of communication of the said order. Hence the appeal is time barred and is dismissed on the same ground. 2. Heard both the sides. 3. The issue involved in the present appeal is in respect of condoning the delay of thirty one days in filing the appeal. Commissioner (Appeals) as per section 128 of the Customs Act, 1962 could have condoned the delay of thirty days. Hon ble Supreme Court held in case of Singh Enterprises [2008 (221) E.L.T. 163 (S.C.)] categorically held as follows:- 8 . The Commissioner of Central Excise (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars that the appellant has categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business there was delay does not stand to be reason. I.T.C. s case (supra) was rendered taking note of the 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. 4. In view of the decision of the Hon ble Supreme Court this Commissioner (Appeals) could not have condoned the delay as prayed for by the appellant. After taking the note of the above decision Delhi Bench has in case of Shambhu Synthetics Pvt. Ltd. vs. Commissioner of Customs, New Delhi [2021 (378) E.L.T. 208 (Tri.-Del.] held as follows:- 6. The relevant portion of Section 128 of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 Central Excise (Appeals) came up for consideration, after placing reliance upon the decision of the Supreme Court in Singh Enterprises observed that the discretion of the Commissioner to condone the delay is circumscribed by the conditions set out in the proviso and any delay beyond that period cannot be condoned. The relevant portion of the decision is reproduced below : 7. In order to appreciate the contentions advanced by the parties it would be appropriate to reproduce Section 85(3A) of the Finance Act which is as follows : 85 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision of the Supreme Court in Collector, Land Acquisition would not be of any help to the appellant. The Supreme Court, in the context of Section 5 of the Limitation Act, explained sufficient cause . This decision would be helpful in only considering whether there was Sufficient cause to explain the delay beyond sixty days and up to the expiry of period of thirty days. As noted above, Section 5 of the Limitation Act would not be applicable for condoning the delay beyond ninety days, in view of the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 up to 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 Tribunal. It is true that Section 35B does not contain a provision similar to Section 35, wherein it is provided that an appeal has to be filed within 60 days from the date of the communication of the order but the Commissioner (Appeals) may, if he is satisfied that the appellant is provided by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of sixty days. Section 35 of the Excise Act would apply to 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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