2017 (10) TMI 1047 - AT - Central Excise

Condonation of delay of 135 days in filing the appeal - case of appellant is that the appeal could not be filed before the Tribunal in time because the impugned order was not traceable - Held that - the Commissioner (A) by relying upon the decision of the Supreme Court in the case of Singh Enterprises vs. CCE 2007 (12) TMI 11 - SUPREME COURT OF INDIA , has held that the Commissioner (A) has no powers to condone the delay beyond 30 days - delay cannot be condoned - appeal dismissed - decided against appellant.

Summary

Issues:
Delay in filing appeal, Condonation of delay application, Jurisdiction of Commissioner to condone delay, Applicability of Section 5 of the Limitation Act.

Analysis:
The appellant filed a miscellaneous application seeking condonation of delay of 135 days in filing the appeal against the order-in-original dated 20.04.2016 issued by the Asst. Commissioner of Central Excise. The appeal was filed before the Commissioner (A) on 09.11.2016, well beyond the last date for filing the appeal of 24.06.2016. The Commissioner (A) dismissed the condonation of delay application and the appeal, citing the decision of the Hon'ble Supreme Court in Singh Enterprises Vs. CCE, 2008. The appellant then filed the present appeal seeking condonation of delay of 137 days, arguing that the delay was not deliberate but due to misplacement of the order-in-original. The appellant contended that the delay was unintentional and should be condoned.

The Learned Counsel for the appellant argued that the delay was caused by the misplacement of the order-in-original with old files, leading to the appeal being filed late. The Counsel emphasized that the delay was not intentional and requested a liberal view in condoning the delay. On the other hand, the Learned AR contested the application for condonation of delay, stating that the reasons provided were insufficient. The AR highlighted that the delay in filing the appeal before the Commissioner was 137 days, beyond the Commissioner's power to condone delay beyond 30 days.

The Tribunal, after considering the submissions and the legal provisions, noted that the delay in filing the appeal was indeed 137 days, exceeding the condonable limit of 30 days as per the statute. Referring to the decision in Singh Enterprises case, the Tribunal held that the Commissioner did not have the authority to condone the delay beyond 30 days. The Tribunal reiterated that the exclusion of Section 5 of the Limitation Act was clear in such cases. As the delay was beyond the condonable limit set by the statute, the Tribunal concluded that it did not have the power to condone the delay and subsequently dismissed the Condonation of Delay application, leading to the dismissal of the appeal.

In light of the legal position established by the Supreme Court's decision and the statutory provisions, the Tribunal upheld the dismissal of the appeal due to the delay exceeding the condonable limit. The judgment emphasized the importance of adhering to the prescribed timelines for filing appeals and the limitations on the authority to condone delays beyond the specified period.