2018 (4) TMI 765 - HC - Central Excise

Condonation of delay in filing appeal - power of Commissioner (Appeal) to condone delay - Held that - 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 06.08.2012 and he filed appeal on 20.02.2013 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 - petition dismissed.

Summary

Issues involved:
Appeal under Section 35(1) of the Central Excise Act, 1944 against order dismissal due to limitation period, Appellate Authority's power to condone delay, Interpretation of Section 35 of the Central Excise Act, 1944, Applicability of Section 5 of the Limitation Act, 1963 in condonation of delay.

Analysis:

1. Appeal under Section 35(1) of the Central Excise Act, 1944 against order dismissal due to limitation period:
The petitioner filed an appeal under Section 35(1) of the Central Excise Act, 1944 against the order passed by the Additional Commissioner, Customs and Central Excise. The Commissioner (Appeals) dismissed the appeal on grounds of being barred by limitation, stating that the appeal was filed beyond the prescribed period of 60 days. The petitioner challenged this decision through a writ petition.

2. Appellate Authority's power to condone delay:
The petitioner argued that the impugned order was unsustainable and should be set aside. The Court examined the provisions of Section 35 of the Central Excise Act, which allows the Appellate Authority to condone a delay of up to 30 days beyond the initial 60-day period. In this case, the petitioner filed the appeal after 90 days from receiving the order, exceeding the permissible limit for condonation.

3. Interpretation of Section 35 of the Central Excise Act, 1944:
The Court referred to the provisions of Section 35 of the Act, emphasizing that the Appellate Authority can only condone a delay of up to 30 days beyond the initial 60-day period for filing an appeal. The legislative intent was clear that the appeal must be filed within the specified timeframe, with a limited provision for condonation of delay.

4. Applicability of Section 5 of the Limitation Act, 1963 in condonation of delay:
The Court cited the decision in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, where it was held that the provisions of Section 5 of the Limitation Act do not apply to appeals under Section 35 of the Central Excise Act. The Court reiterated that the Appellate Authority has no power to allow the appeal to be presented beyond the period of 30 days after the initial 60-day timeframe.

5. Conclusion:
Based on the legal position established by previous judgments and the clear language of the statute, the Court concluded that the appellate authority had no jurisdiction to condone the delay beyond 30 days in filing the appeal. Consequently, the appeal was rightly dismissed as barred by law, and the writ petition challenging this decision was dismissed by the Court.