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2015 (3) TMI 627 - HC - Central ExcisePower of Commissioner (A) to condone the delay - Wrong availment of CENVAT credit - credit on Rough Forged and 'Rail' - Bar of limitation - Commissioner held hat appeal was filed not only beyond period of limitation but also beyond period permissible to be condoned under statute and therefore, it had no power to condone delay beyond maximum period prescribed - Whether dismissal of appeal by Commissioner (A) on the ground of limitation was justified or not - Held that - Section 5 of Limitation Act is completely excluded in its application to Section 35 of Act, 1944. There the Court proceeded to consider argument that in writ jurisdiction, delay beyond 90 days, could have been condoned by High Court. Firstly, the Court considered explanation and found unacceptable. Having said so, Court also held that judgment in I.T.C.'s Case (1990 (8) TMI 173 - SUPREME COURT OF INDIA) has not rendered any law that even where statute presecibe a particular period of limitation, High Court or Supreme Court can direct for condonation. Court categorically said that all such Courts would render statutory provisions providing for limitation rather otiose. - since admittedly the appellant has not come in a writ petition, an appeal under Section 35G of Act, 1944 has come up before this Court. Even Uttrakhand High Court dismissed appeal, preferred by party 2014 (3) TMI 419 - UTTARAKHAND HIGH COURT , holding that delay was not condonable. So far as indulgence granted by Nainital High Court against recovery was in the writ petition, which has come up before this Court on the ground that recovery was patently illegal and without jurisdiction and nonest, but, no indulgence was granted in appeal preferred by assessee. - Decided against the assessee.
Issues Involved:
1. Whether the Commissioner has rightly held that condonation of delay is not permissible beyond the period provided in statute and therefore, delay cannot be condoned and the appeal has to be dismissed as barred by limitation? 2. Whether the Tribunal has erred in law in holding that in the case in hand delay of almost 1 year in filing appeal could not have been condoned under the statute? Issue-wise Detailed Analysis: 1. Condonation of Delay Beyond Statutory Period: The appeal was filed under Section 35G of the Central Excise Act, 1944, challenging the order of the Customs, Excise, and Service Tax Appellate Tribunal, which upheld the Commissioner (Appeals)' decision to reject the appeal due to being filed beyond the permissible period of limitation. The appellant admitted to receiving the order in July 2011 but filed the appeal in July 2012, citing the closure of the unit and the illness of the Managing Director as reasons for the delay. The Commissioner (Appeals) found that the appeal was filed beyond the statutory period of 60 days plus an additional condonable period of 30 days, making it 90 days in total. The Commissioner (Appeals) and the Tribunal both held that they had no authority to condone the delay beyond this period, as per the statutory provisions. 2. Tribunal's Decision on Delay Condonation: The Tribunal upheld the Commissioner (Appeals)' decision, reiterating that the statutory provisions do not allow for condonation of delay beyond the maximum period of 90 days. The appellant's counsel argued that the Tribunal erred in not considering the merits of the case due to the delay. However, the court noted that the only question for consideration was whether the dismissal of the appeal on the ground of limitation was justified. The court referred to several precedents, including the Supreme Court's decision in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, which held that the appellate authority has no power to condone delay beyond the period specified in the statute, and Section 5 of the Limitation Act, 1963, is excluded in its application to Section 35 of the Central Excise Act, 1944. Relevant Precedents and Legal Provisions: The court cited multiple precedents to support its decision, including: - Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, where the Supreme Court held that the appellate authority cannot condone delay beyond the period specified in the statute. - Commissioner Customs and Central Excise, NOIDA v. Punjab Fibres Ltd., NOIDA, which reiterated that statutory provisions providing for limitation cannot be overridden by Section 5 of the Limitation Act, 1963. - Vimal Organics Ltd. v. State of Uttar Pradesh, where the court held that in special enactments with specific provisions for limitation, the court does not have the power to extend the period of limitation beyond what is prescribed. Conclusion: The court concluded that the Commissioner (Appeals) and the Tribunal were correct in holding that they had no power to condone the delay beyond the statutory period of 90 days. The appeal was dismissed on the grounds of being barred by limitation, and the substantial questions of law were answered against the appellant. The court also noted that the appellant did not seek relief through a writ petition, which might have allowed for different considerations, but instead pursued an appeal under Section 35G, where the statutory limitations were clear and binding. The appeal was dismissed, and no costs were awarded.
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