2015 (10) TMI 2203 - AT - Central Excise

Condonation of delay - Power of commissioner to condone delay - inordinate delay of 15 months - Held that - High Court has directed learned Commissioner (Appeals) to decide the application for Condonation of delay on merits.The provisions of section 35(1) of Central Excise Act, 1944 restrict the time limit for learned Commissioner (Appeals) to entertain the appeal within two months and which can extend to period of 30 days which is sufficient time as shown to make appeal before him causing delay as per the statute before the Commissioner (Appeals). Commissioner (Appeals) is restricted not to entertain any appeal filed beyond three months and said fact has been affirmed by Hon ble Apex Court in the case of Singh Enterprises (2007 (12) TMI 11 - SUPREME COURT OF INDIA). - Same view has been taken by the Division Bench of Allahabad High Court in the case of Doaba Rollling Mills (P) Ltd. (2004 (2) TMI 77 - HIGH COURT OF JUDICATURE AT ALLAHABAD) and Modi Distillery (2007 (5) TMI 252 - HIGH COURT OF JUDICATURE AT ALLAHABAD). Therefore, learned Commissioner (Appeals) have no power to entertain any appeal which is filed beyond the period prescribed under section 35(1) of Central Excise Act, 1944. - Decided against assessee.

Summary

Issues:
1. Power of Commissioner (Appeals) to condone delay beyond three months under Section 35(1) of Central Excise Act, 1944.

Analysis:
The appellant filed an appeal against an adjudication order received on a specific date, which was beyond the permissible time limit. The Commissioner (Appeals) dismissed the appeal stating the lack of power to condone delays beyond three months under Section 35(1) of the Central Excise Act, 1944. This decision was challenged in the High Court, which directed the Commissioner to decide the delay application on merit. However, the Commissioner again dismissed the appeal, reaffirming the lack of authority to condone delays beyond three months.

The appellant argued that the High Court's directive was not followed as the Commissioner did not consider the merits before dismissing the appeal. On the other hand, the respondent contended that the Commissioner correctly applied the law by dismissing the appeal due to the delay exceeding the statutory limit. The respondent cited relevant case laws to support their position.

The Tribunal considered the submissions and the directive from the High Court. It was noted that the Commissioner and the Tribunal have limited authority to condone delays beyond the prescribed period under the statute. The Tribunal highlighted that the appellate authority can entertain appeals within a specified timeframe, with a provision for a further 30-day extension under certain conditions. The Tribunal emphasized the exclusion of the Indian Limitation Act's Section 5 in such matters.

Moreover, the Tribunal referred to decisions by the Division Bench of the Allahabad High Court, supporting the stance that the Commissioner (Appeals) lacks the power to entertain appeals filed beyond the statutory time limit. It was clarified that the Commissioner's jurisdiction is restricted in this regard, as affirmed by relevant legal provisions and judicial precedents.

The Tribunal also noted that decisions by Division Benches hold precedence over those by Single Judges. In this case, the Tribunal upheld the Commissioner's decision to dismiss the appeal due to the delay exceeding the permissible period under Section 35(1) of the Central Excise Act, 1944. Consequently, the appeal filed by the appellant was dismissed.