TMI Blog2023 (11) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 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 in proviso and the delay can be condoned only if the appeal is presented within a further period of one month after the expiry of the statutory period of two months. In the present case, admittedly, the order dated 29.12.2016 of the adjudicating authority was received by the appellant on 06.01.2017, but the appeal was presented before the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner (Appeals) should have condoned the delay as satisfactory explanation had been offered. The Commissioner (Appeals) was, therefore, justified in dismissing the appeal on the ground of limitation. Appeal dismissed. - SHRI DILIP GUPTA, PRESIDENT AND P.V. SUBBA RAO, MEMBER (TECHNICAL) Mr. Jatin Mahajan, Advocate for the Appellant Ms. Jaya Kumari, Representative for the Department ORDER The appeal that was filed by the appellant before the Commissioner (Appeals) on 27.12.2017 to assail the order dated 29.12.2016 passed by the Additional Commissioner that was received by the appellant on 06.01.2017 was dismissed by the Commissioner (Appeals) as it was filed even after the expiry of the extended period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. 6. 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The provisions of section 35 of the Central Excise Act, 1944 are pari materia 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 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. 9. It is, therefore, not possible to accept the contention advanced by the learned counsel for the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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