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2013 (9) TMI 353 - AT - CustomsCondonation of delay - Assessee had been filed the applications for condonation of delay and the appeal beyond the period of 90 days - appellate authority had dismissed the appeal Held that - appellate authority was correct in dismissing the appeal filed by the appellant as belated u/s 128 the appellant should have filed the appeal on within 60 days available to him - appellant was eligible for file an appeal within next 30 days subject to there being an application for condonation of delay and the said application entertained by the first appellate authority on the merit court followed the judgement of SINGH ENTERPRISES Versus COMMISSIONER OF C. EX., JAMSHEDPUR (2007 (12) TMI 11 - SUPREME COURT OF INDIA) appeal decided against the assessee.
Issues:
1. Timeliness of filing the appeal under Section 128 of Customs Act, 1962. The judgment by the Appellate Tribunal CESTAT Ahmedabad involved a Stay Petition and appeal against Order-in-Appeal No.313/2011/Cus/Commr (A)/AHD/314, dated 30.09.11. The appellant's appeal was dismissed by the first appellate authority as being filed beyond the 90-day period allowed. The appellant claimed the Order-in-Original was received on 25.02.2011, while postal authorities confirmed delivery on 08.02.2011. The appellant filed the appeal on 16.05.2011, resulting in a delay of 6 days. The appellant argued for condonation of delay citing a Tribunal case, but the Assistant Commissioner contended that the delay could not be condoned under Section 128 of the Customs Act, 1962, based on Supreme Court decisions. The Tribunal noted the appellant's acknowledgment of the receipt date and the statutory timeline for filing the appeal. The appeal was filed beyond the 90-day period, leading to its dismissal by the first appellate authority as belated. The Tribunal referred to the Supreme Court's decision in Singh Enterprises - 2008 (221) ELT 163 (SC) to settle the issue at hand. It highlighted that the decision in Ishwar Metal Industries did not consider the Supreme Court's ruling in Singh Enterprises, which directly pertained to the Customs Act, 1962 and Central Excise Act, 1944. Given the direct relevance of the Supreme Court's judgment to the legal point in question, the Tribunal found no merit in the appellant's appeal and dismissed it accordingly.
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