2018 (4) TMI 475 - HC - Central Excise

Condonation of delay in filing appeal - power of Commissioner (Appeal) to condone delay - Section 35(1) of the Central Excise Act, 1944 - Held that - the Appellate Authority can condone the delay up to 30 days at the most. Therefore, if the appeal is not filed beyond 90 days, the Appellate Authority has no jurisdiction to condone the delay - In the instant case, the petitioner has received the copy of order of appeal on 31.01.2013 and he filed appeal on 09.10.2013 it is beyond the period of 90 days and, therefore, it has rightly been dismissed by the appellate authority. The appellate authority has no jurisdiction to condone the delay beyond 30 days in filing the appeal and learned Tribunal is justified in dismissing the appeal as barred by law - petition dismissed.

Summary

Issues:
Appeal under Section 35(1) of the Central Excise Act, 1944 against an order dismissed for being barred by limitation.

Analysis:
The petitioner appealed against an order passed by the Additional Commissioner, Customs and Central Excise, which was dismissed by the Commissioner (Appeals) on grounds of being time-barred. The Commissioner (Appeals) held that they had no power to condone the delay after the prescribed period of 60 days. The petitioner challenged this decision through a writ petition, claiming the order was unsustainable and bad in law.

The petitioner's counsel argued that the impugned order should be set aside, while the revenue's counsel relied on a previous court decision to support the dismissal of the appeal due to being time-barred. The court carefully considered both parties' submissions and reviewed the impugned order.

Section 35 of the Central Excise Act states that the Appellate Authority can only condone a delay of up to 30 days. If an appeal is not filed within 90 days, the Appellate Authority lacks jurisdiction to condone the delay. In this case, the petitioner received the order on 31.01.2013 but filed the appeal on 09.10.2013, exceeding the 90-day limit, leading to the rightful dismissal by the appellate authority.

Referring to the case of Singh Enterprises v. Commissioner of Central Excise, the Supreme Court clarified that Section 35 of the Act overrides the provisions of Section 5 of the Limitation Act. The appellate authority can only entertain appeals within the specified time frames and lacks the power to condone delays beyond the statutory limits.

The Supreme Court's decision in Commissioner of Customs, Central Excise, Noida v. Punjab Fibres Ltd. and Goodearth Steels (P) Ltd v. Commissioner of Central Excise further supported the limited authority of appellate bodies to condone delays in filing appeals. Based on the established legal position, the court concluded that the appellate authority correctly dismissed the appeal as time-barred, finding no grounds for interference in the writ petition.

Therefore, the court dismissed the writ petition, upholding the decision that the appeal was rightly rejected due to being filed beyond the permissible time frame allowed by law.