2016 (2) TMI 783 - AT - Central Excise

Condonation of delay - whether appeal should be filed within 90 days? - appellant submitted that admittedly the appeal was filed after 97 days from the date of receipt of the order - Held that - Singh Enterprises 2007 (12) TMI 11 - SUPREME COURT OF INDIA wherein the Supreme Court has held that the proviso to sub-section (1) of Section 35 makes the position clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay of 30 days after expiry of 60 days which is the normal period of filing appeal. Therefore, keeping in view the above it is of the considered view that there is no force in the appeal of the appellant and consequently dismiss the appeal. Stay application is accordingly disposed of.

Summary

Issues: Appeal against dismissal on limitation without considering merits of the case.

Analysis:
1. The appeal was filed against the Order-in-Appeal dismissing the appellant's appeal on limitation without delving into the merits of the case. The appellant, a manufacturer of packing frames for 3 wheelers, availed CENVAT Credit of input services. The department objected to invoices lacking service tax registration numbers, leading to a show-cause notice for availing inadmissible credit, which was confirmed by the Adjudicating Authority.

2. The appellant filed an appeal before the Commissioner (Appeals) after 97 days of receiving the order, exceeding the statutory 60-day limit under Section 35. The appellant argued that the delay was due to the unavailability of the GM, who was dealing with administrative work, following a family tragedy. The appellant contended that the Commissioner should have considered the appeal on merits. Reference was made to the judgment in Jai Hind Bottling Co. P. Ltd. 2002 (146) ELT 273 to support the argument for condonation of delay.

3. The respondent argued that the appeal was rightly dismissed due to exceeding the prescribed limitation period. As per Section 35, the Commissioner (Appeals) can only condone a delay of 30 days beyond the initial 60-day period for filing an appeal. Citing the case of Modern Synthetics 2004 (165) ELT 285, it was highlighted that the Commissioner lacks the authority to entertain appeals beyond the statutory limitation period. Reference was made to the decision in Singh Enterprises 2008 (221) ELT 163, where the Supreme Court clarified the appellate authority's power to allow appeals within the specified timeframe.

4. The Tribunal, considering the precedents and legal provisions, upheld the dismissal of the appeal based on limitation. Relying on the Supreme Court's interpretation and previous Tribunal decisions, it was concluded that the Commissioner was not empowered to condone delays beyond the 30-day extension after the initial 60-day period. Consequently, the appeal was dismissed, and the stay application was disposed of accordingly.