2013 (12) TMI 1085 - AT - Central Excise

Condonation of Delay Delay of one year far beyond the condonable period Held that - The order-in-original was received by the party on 23.07.2010 and an appeal against the same was filed only on 08.08.2011 with a delay far beyond the condonable period of delay prescribed under Section 85 of the Finance Act 1994 Following Singh Enterprises Vs. Commissioner 2007 (12) TMI 11 - SUPREME COURT OF INDIA - Section 5 of Limitation Act 1963 was not applicable and that the Commissioner (Appeals) was not empowered, under Section 35 of the Central Excise Act, to condone any delay beyond the condonable period of delay (30 days) prescribed the order of Commissioner (Appeals) sustained and appeal dismissed with the stay application.

Summary

Issues:
1. Waiver and stay application by the appellant.
2. Delay in filing the appeal against the order-in-original.
3. Applicability of the condonable period of delay prescribed by the statute.
4. Legal position declared by the apex court regarding condonation of delay.

Analysis:

1. The appellant filed an application seeking waiver and stay, but there was no representation for the appellant despite notice. The bench noted that on two earlier occasions as well, there was no representation. In such circumstances, the case was taken up. The learned Superintendent (AR) submitted that the impugned order was not on merits but rather on the delay in filing the appeal against the order-in-original. The delay was found to be far beyond the condonable period of delay prescribed by the statute. The order-in-original was received on 23.07.2010, and the appeal was filed on 08.08.2011, well beyond the condonable period.

2. Upon perusal of the records, it was found that the delay was indeed beyond the condonable period. Referring to the decision of the Hon'ble Supreme Court in Singh Enterprises Vs. Commissioner [2008 (221) E.L.T. 163 (S.C)], it was established that the Commissioner (Appeals) did not have the power to condone any delay beyond the prescribed period. The legal position declared by the apex court was clear that the condonable period of delay could not be extended beyond what was specified in the statute. Therefore, the decision of the lower appellate authority to reject the appeal as time-barred was in accordance with the legal position declared by the apex court.

3. The Appellate Tribunal affirmed the appellate Commissioner's order, dismissing the appeal along with the stay application. It was emphasized that no higher court, including the High Court or even the Supreme Court, would interfere with a decision that aligns with the legal position declared by the apex court. The judgment was pronounced and dictated in open court, thereby concluding the matter based on the legal principles and precedents cited during the proceedings.