2018 (2) TMI 460 - AT - Central Excise

Condonation of delay of 237 days in filing appeal - Section 35B of CEA 1944 - power of Commissioner (Appeals) to condone delay - Held that - the time limit for filing the appeal before the ld. Commissioner (Appeals) has been prescribed under Section 35B of Central Excise Act, 1944 wherein the assessee is required to file the appeal against the adjudication order within 60 days of its communication and the said period can be further extended by 30 days if the reasons for causing delay is explained satisfactorily - Admittedly, the appeals have been filed by the appellants beyond the period of condonable delay by the ld. Commissioner (Appeals). Ld. Commissioner (Appeals) has no powers to condone the delay - appeal dismissed.

Summary

Issues:
1. Timeliness of filing appeals before the ld. Commissioner (Appeals) under Section 35B of Central Excise Act, 1944.

Analysis:
The appellants filed an appeal against an impugned order that was dismissed as time-barred by the ld. Commissioner (Appeals). The adjudication order was received on 04.04.2016, and the appeals were filed on 27.01.2017, causing a delay of 237 days. The ld. Commissioner (Appeals) dismissed the appeals citing Section 35B of the Central Excise Act, 1944, which requires appeals to be filed within 60 days of receiving the adjudication order, extendable by a further 30 days with satisfactory reasons for delay. The decision in Singh Enterprises Vs. CCE, Jamshedpur (2008) was referenced, stating that once the initial period and the extendable period have passed, the delay cannot be condoned by the ld. Commissioner (Appeals).

The appellants contested the dismissal on the grounds that the delay was unintentional due to lack of communication, they had a strong case on merit, and the respondent would not suffer if the delay was condoned. They argued that the Hon'ble Tribunal had inherent power to condone the delay and decide on the merit of the case. Additionally, they claimed that the respondent did not contest the points raised in the appeal and did not appear for the hearing before the Commissioner (Appeals), suggesting that the appeal should have been decided on merit rather than dismissed solely on the grounds of being time-barred.

Upon reviewing the grounds for condonation of delay, it was noted that the appellants did not provide a specific explanation for the delay but rather presented general arguments emphasizing the consideration of merits over the limitation issue. The presiding Member found that the appeals were indeed filed beyond the condonable period specified under Section 35B, and as such, the ld. Commissioner (Appeals) lacked the authority to condone the delay. Consequently, the impugned order dismissing the appeals as time-barred was upheld, leading to the dismissal of the appeals.