THE EXECUTIVE ENGINEER WORKS SHOP Versus CGST C.C & C.E, JABALPUR
Central Excise
2019 (2) TMI 560 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 29-1-2019
Appeal No. E/51779/2018 – FINAL ORDER No. 50211/2019
Central Excise
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 period of limitation prescribed under section 85 of the Finance Act, 1994 (hereinafter referred to as the Act) that this appeal has been filed.
2. In order to appreciate the contentions, it will be useful to reproduce the relevant provisions of Section 85 of the Act and they are as follows:
“Appeals to the Section 85. Commissioner of Central Excise (Appeals).- (1) Any pers
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e 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 upon the decision of Calcutta High Court in Satish Kumar Sharma vs. Union of India reported in 2015 (328) ELT 43 (Cal), dismissed the appeal. Infact the Commissioner (Appeals) also noticed that the appellant had not given any reason for condoning the delay.
4. Learned Counsel for the appellant has relied upon the decision of the Supreme Court in Collector, Land Acquisiti
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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 Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the 'Limitat
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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 means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period. From the appli
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ppeals). – (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) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.”
6. In this view of the matter, 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 dismi
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