2017 (8) TMI 514 - AT - Central Excise

Condonation of delay - power of the Commissioner (A) to condone delay - maintainability of appeal - Held that - there is a delay of 91 days after the 60 days period provided for filing the appeal and the Commissioner (A) has power to condone maximum 30 days delay on being satisfied that the appellant is prevented by sufficient cause in not filing the appeal within the period of 60 days - delay not condonable - appeal rightly dismissed and not maintainable.

Summary

Issues:
Delay in filing appeal before Commissioner (A), Condonation of delay beyond permissible period, Interpretation of Section 35(1) of Central Excise Act, 1944, Applicability of Singh Enterprises case, Jurisdiction of Commissioner (A) to condone delay.

Analysis:
The appeal before the Appellate Tribunal CESTAT Bangalore was against the order passed by the Commissioner (A) dismissing the application seeking condonation of delay in filing the appeal. The appellant, engaged in the manufacture of excisable goods, filed the appeal on 3.8.2016 against the Order-in-Original dated 29.2.2016, along with a condonation of delay application. The appellant requested the Commissioner (A) to condone the delay of 85 days, stating it was not intentional but incidental. However, the Commissioner (A) observed that the appeal was filed after a delay of more than 90 days from the date of receipt of the Order-in-Original, beyond the condonable period of 30 days as per Section 35(1) of the Central Excise Act, 1944.

The Commissioner (A) relied on the decision of the Hon'ble Supreme Court in the case of Singh Enterprises, which clarified that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days after the expiry of the initial 60 days provided for filing the appeal. Additionally, the judgment of the Hon'ble Bombay High Court in the case of M/s. Flemingo (Duty free shop) Pvt. Ltd Vs. CCE was cited, emphasizing the limitation on the Commissioner (A) to condone delays beyond 30 days.

Upon hearing the arguments, the Judicial Member, SS Garg, found that there was a delay of 91 days in the appeal, exceeding the permissible condonable period of 30 days after the initial 60-day timeframe for filing the appeal. Citing the Supreme Court decision and the lack of jurisdiction for the Commissioner (A) to condone delays beyond 30 days, the application for condonation of delay was rightly dismissed, leading to the dismissal of the appeal. The Judicial Member upheld the decision of the Commissioner (A) and dismissed the appeal of the appellant, concluding the matter on 04/07/2017.