TMI Blog2024 (2) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [ 2007 (12) TMI 11 - SUPREME COURT] in unambiguous terms, has laid down that there was no power to condone the delay after the expiry of the extended period of 30 days. The Tribunal in the case of M/S DIAMOND CONSTRUCTION, M/S SAI SHREE CONSTRUCTION VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE SERVICE TAX [ 2019 (2) TMI 1822 - CESTAT NEW DELHI] also observed that the provisions of Section 35 of the Central Excise Act relating to filing of an appeal before the Commissioner (Appeals) are in pari materia to Section 85(3A) of the Finance Act and hence, the decision of the Apex Court in Singh Enterprises will squarely apply and as a result, the delay cannot be condoned by the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The application for Condonation of Delay in filing the present appeal is dismissed for want of any sufficient cause - appeal dismissed. - MS. BINU TAMTA, MEMBER (JUDICIAL) AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Rahul Lakhwani, Chartered Accountant for the appellant Shri S.K. Meena , Authorised Representative for the respondent ORDER The present appeal has been filed challenging the Order-in-Appeal No.627(CRM)CE/JDR/2018 dated 21.06.2018, whereby the appeal filed by the appellant herein was dismissed on the ground of limitation. 2. From the impugned order, we find that the order-in-original was passed by the Adjudicating Authority on 27.02.2015 and the same was communicated to the appellant on 30.03.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson to act on behalf of the State Government, there is no proper service of the impugned order and the findings of the Commissioner, that the appeal is barred by limitation, is unsustainable. He submitted that there is no proper service of the impugned order-in-original or for that matter, the order-in-appeal on the appropriate authority. 4. Learned Authorised Representative for the Revenue while pointing out the provisions of Section 85(3A) of the Finance Act also referred to the decision of the Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur 2008 (221) ELT 163 (SC) and also the decision of this Tribunal in the case of Diamond Construction Vs. Commissioner of Customs, Central Excise and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. 6. Following the aforesaid decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court in Singh Enterprises (supra) will squarely apply and as a result, the delay cannot be condoned by the Commissioner (Appeals) and there is no illegality in the impugned order. 7. We have already noted above the delay as pointed out by the Commissioner (Appeals) in the impugned order and we are of the considered opinion that the impugned order deserves to be upheld. The contention raised by the appellant that they are not the proper authority for levying the service tax and to file the appeal challenging the impugned order needs to be rejected for the simple reason that in response to the show cause notice, the appellant had submitted the reply and in adjudication proceedings, it is the appellant, who had contested. Thereafter, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 90 days and the issue was considered on merits, however, we do not agree with the same in view of the decision of the Apex Court in Singh Enterprises (supra) and the decision of this Tribunal in Diamond Construction (supra). 9. We also find that at the time when the impugned order was passed on 21.06.2018, the appellant was pursuing the appeal before this Tribunal against the order-in-appeal dated 09.04.2018 and also against order-in-appeal dated 12.12.2014 which resulted in the Final Order dated 30.09.2019 and Final Order dated 17.06.2021 respectively (as referred above). The appellant could have similarly approached this Tribunal within the prescribed period. Therefore, the plea taken by the learned Counsel for the appellant in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
