2017 (6) TMI 1106 - HC - Central Excise

Condonation of delay in filing appeal - Section 35 of the Central Excise Act - Held that - decision in the case of SINGH ENTERPRISES Versus COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT OF INDIA relied upon where it was held that there is complete exclusion of Section 5 of the Limitation Act and the Commissioner does not have power to condone the delay after the expiry of 30 days - The Commissioner as such did not have jurisdiction to condone the delay of 30 days - petition dismissed - decided against petitioner.

Summary

Issues:
1. Delay in filing the appeal under Section 35 of the Central Excise Act.
2. Power of the Appellate Authority to condone delay beyond the prescribed period.
3. Interpretation of the proviso to subsection (1) of Section 35 regarding the time limit for filing an appeal.

Analysis:
1. The petitioner's appeal was dismissed due to a delay of 44 days in filing the appeal under Section 35 of the Central Excise Act, which has a prescribed limitation period of 60 days. The petitioner argued that despite the delay, the Court should consider the cause for condonation of delay as the petitioner had a strong case on merit. The petitioner requested the respondent to provide information on the documents relied upon and sought to quash the impugned order.

2. The learned Counsel for the revenue contended that the Appellate Authority does not possess the power to condone delays exceeding 30 days, and thus, the order dismissing the appeal was justified. Citing precedents, including the case of "Singh Enterprises Vs. Commissioner of C.Ex. Jamshedpur" and "M/s. Flemingo (Duty Free Shop) Pvt. Ltd. and Another Vs. The Commissioner of Customs (Appeal) Mumbai Zone I and Others," the revenue's argument was based on the limitations set forth by the law.

3. The Court referred to the observations made by the Apex Court in the case of Singh Enterprises, emphasizing that the appellate authority can only entertain appeals by condoning delays within the specified time limits. The Court highlighted that the proviso to subsection (1) of Section 35 clearly restricts the appellate authority from allowing appeals to be presented beyond 30 days after the initial 60-day period. The exclusion of Section 5 of the Limitation Act was noted, affirming that the Commissioner lacked the jurisdiction to condone delays beyond the specified period.

4. Ultimately, the Court upheld the decision to dismiss the Writ Petition, stating that the Commissioner did not have the authority to condone the 30-day delay. As a result, the Court did not delve into the merits of the case due to the procedural issue. The judgment was based on the statutory provisions and precedents cited, leading to the dismissal of the appeal without imposing any costs.