TMI Blog2023 (9) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Commissioner of Central Excise (Appeals) 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. In the present case, admittedly, the order dated 30.01.2017 of the adjudicating authority was received by the appellant on 06.02.2017, but the appeal was presented before the Commissioner on 27.07.2017. It was clearly not presented within the period of two months nor within the extended period of one month. The Commissioner (Appeals) dismissed the appeal after placing reliance on the decision of Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [ 2007 (12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of section 85(3A) of the Finance Act an appeal to the Commissioner of Central Excise (Appeals) was required to be presented within two months from the date of receipt of the decision but the Commissioner of Central Excise (Appeals), if he was 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. 4. The Commissioner (Appeals) after noticing that the appeal was not presented even during the extended period of one month after the expiry of two months from the date of receipt of the decision of the adjudicating authority, dismissed the appeal. 5. Shri Abhimanyu Garg, learned counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. 9. A perusal of sub-section (3A) of Section 85 clearly indicates that an appeal shall be presented within two months from the date of receipt of the order of the adjudicating authority in relation to Service Tax, interest or penalty. It further provides that the Commissioner of Central Excise (Appeals) 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 discretion of the Commissioner to condone the delay is, therefore, circumscribed by the condition set out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act are paramateria with section 85(3A) of the Finance Act. The Supreme Court held that the period upto which the prayer for condonation can be accepted is limited by the proviso to sub section (1) of section 35 of the Central Excise Act and the position is crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the expiry period of sixty days. In other words, the appellate authority can entertain the appeal by condoning the delay only upto 30 days beyond the normal period for preferring the appeal, which is 60 days. 12. The Commissioner (Appeals), therefore, did not commit any illegality in dismissing the appeal. The present appeal is, accordingly, dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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