2018 (11) TMI 1620 - HC - Central Excise

Condonation of delay in filing appeal - Commissioner (Appeals) dismissed the appeal on the point of limitation since the appeal was preferred after the period of limitation which could not be condoned in terms of the Section 35 (1) of the Act of 1944 - HELD THAT - Admitted position is that the appeal was not filed by the present Appellant before the Commissioner (Appeals) within 60 days of the order of the Assessing Authority. It was further not filed within the additional 30 days for which power of condonation has been vested in the Commissioner (Appeals) in terms of the proviso of Section 35(1) of the Act of 1944. Beyond those period of 30 days, the statue does not permit any kind of condonation to be allowed by the Commissioner (Appeals). Therefore, if the appeal of the Appellant was presented after the 30th day i.e. beyond the extended period of limitation it was not condonable. The Commissioner (Appeals) was forced by law to dismiss the appeal as being time barred. Since the Act of 1944 is a special Act, therefore, the provisions of the Act itself will have to be relied upon and other statues of limitation cannot be borrowed or adopted to overcome the rigors of the statue which has fixed a time frame of limitation - The power to condone the delay conferred upon the Commissioner (Appeals) ends if the appeal is preferred after 30 days of extended period and expiry of 60 days of initial limitation. As we are well aware that in matters of limitation a right may subsist, but the remedy gets extinguished, therefore, by the conduct of the Appellant himself if he had extinguished his right by not moving the appellate authority in time then a via media cannot be found by urging that even though the Commissioner (Appeals) dismissed the appeal on grounds of limitation, the superior forum should circumvent the bar created against the remedy, which in turn will have the effect of setting aside an otherwise legal and valid order, passed by the Statutory Authority - We, therefore, fail to appreciate and entertain the line of arguments to set aside the order passed by the Tribunal, since it will help him override the law. Appeal dismissed.

Summary

Issues:
Appeal under Section 35-G of the Central Excise Act, 1944 against Tribunal's decision. Dismissal of appeal by Commissioner (Appeals) on the point of limitation. Whether delay in filing appeal can be condoned by higher forums like Tribunal or High Court.

Analysis:
The judgment pertains to a tax appeal filed under Section 35-G of the Central Excise Act, 1944 against a decision by the Tribunal. The appellant's appeal to the Commissioner (Appeals) was dismissed due to being filed after the prescribed 60-day limitation period, which could not be condoned under Section 35(1) of the Act. The law mandates strict adherence to prescribed time frames for appeals related to excise duties, crucial for government revenue. The Act's provisions must be strictly followed, and external statutes of limitation cannot be applied to bypass the Act's rigors.

The power to condone delay by the Commissioner (Appeals) ceases if an appeal is filed beyond the extended 30-day period after the initial 60-day limitation. The appellant argued for condonation by higher forums like the Tribunal or High Court in the interest of justice. However, the court emphasized that allowing such condonation would undermine the legislative intent behind the Act and set aside valid statutory orders. The court highlighted that while a right may exist, the remedy is extinguished if not pursued within the prescribed time limits.

Ultimately, the court refused to entertain the appellant's argument to set aside the Tribunal's order, stating that doing so would circumvent the law. The judgment concluded that both the Tribunal and the High Court would not override the limitations set under Section 35(1) of the Act or its Proviso. Consequently, the appeal was deemed to lack merit and was dismissed accordingly.