2019 (2) TMI 560 – CESTAT NEW DELHI – TMI – Condonation of delay in filing appeal – appeal filed beyond the period of limitation prescribed under section 85 of the Finance Act, 1994 – Held that:- As the appeal was preferred before the Commissioner (Appeals) even beyond the extended period of one month after the expiry of the statutory period of two months, it was liable to be dismissed and was rightly dismissed by the Commissioner (Appeals).
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There is, therefore, no error in the order passed by Commissioner (Appeals) – The appeal is dismissed. – Appeal No. E/51779/2018 – FINAL ORDER No. 50211/2019 – Dated:- 29-1-2019 – Mr. Justice Dilip Gupta, Member (Judicial) And Mr. C L Mahar, Member (Technical) Present for the Appellant: Shri Arya Bhatt, Advocate Present for the Respondent: Shri P Juneja, AR ORDER Per: Mr. Justice Dilip Gupta: It is against the order dated 30 April, 2018 of the Commissioner (Appeals) dismissing the appeal for the reason that it had been filed beyond the perio
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Provided 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. 3. In the instant case, the appellant received the order dated 28 December, 2017 on 8 January, 2018. The Commissioner (Appeals) noted that the appeal should have been filed within two months from the date of receipt of the order by 8 March, 2018 and that though the proviso to sub-section (3A) of section 85 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, but in the present case, the appeal was filed even beyond this extended period of one month. It is for this reason, the Commissioner (Appeals), relying u
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ant, has relied upon the aforesaid decision of the Supreme Court in Mst Katji to condone the delay. This decision will also not come to the aid of the appellant in view of the decision of the Supreme Court in Singh Enterprises vs. CCE, Jamshedpur reported in 2008 (221) E.L.T. 163 (S.C.). The Supreme Court examined the provisions of section 35 of the Central Excise Act, 1944 which is para materia to the provisions of section 85 of Act and observed that delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and High Court were justified in holding that there was no power to condone the delay after expiry of 30 days period. Paragraph numbers 8, 9 and 10 of the judgment are reproduced below: 8. The Commissioner of Cen
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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. 9. Learned counsel for the appellant has emphasized on certain decisions, more particularly, I.T.C. s case (supra) to contend that the High Court and this Court in appropriate cases condoned the delay on sufficient cause being shown. 10. Sufficient cause is an expression which is found in various statutes. It essentially me
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r 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. 5. Section 35 of the Central Excise Act 1944 which was considered by the Supreme Court in the aforesaid case is as reproduced below: 35. Appeals to Commissioner (Appeals). – (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2
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