2019 (4) TMI 1592 - AT - Central Excise

Condonation of delay in filing appeal - time limitation - power of Commissioner (Appeals) to condone delay - HELD THAT - An Appeal can be filed within 60 days from the date of communication of the order but if the Appeal is filed after 60 days but within 30 days after the expiry of 60 days, the Commissioner (Appeals) may condone the delay in filing the Appeal if he is satisfied that the Appellant was prevented by sufficient cause from preferring the Appeal within 60 days. It, therefore, implies that if the Appeal is filed after 30 days after the expiry of the initial 60 days, the delay cannot be condoned. The Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT OF INDIA examined the provisions of Section 35(1) of the Act and held that the first proviso to Section 35 (1) makes the position very clear that if the appeal is not preferred within 60 days from the date of communication of the order, then the delay can be condoned if the Appeal is presented within a period of further 30 days only - In the present case admittedly, the appeal that was filed before the Commissioner (Appeals) was not only filed beyond 60 days from the communication of the order, but even beyond the extended period of 30 days and therefore, the Commissioner (Appeals) committed no illegality in rejecting the appeal. Thus, the Commissioner (Appeals) could not have condoned the delay if the appeal was not preferred within 30 days after the expiry of the initial period of 60 days - appeal dismissed - decided against appellant.

Summary

Issues:
1. Appeal filed beyond the prescribed time period.
2. Whether delay in filing the appeal can be condoned.

Analysis:
Issue 1: The appeal was filed beyond the prescribed time period, which led to its rejection by the Commissioner (Appeals). The appellant filed the appeal under Section 35(1) of the Central Excise Act, 1944, more than 60 days after the communication of the order. The Commissioner (Appeals) relied on a decision of the Madhya Pradesh High Court to dismiss the appeal as time-barred.

Issue 2: The appellant argued for the condonation of the delay in filing the appeal, citing the illness of their consultant during the relevant period. The appellant relied on a Tribunal decision to support their argument. However, the Department representative referred to a Supreme Court decision to assert that the delay could not be condoned beyond the extended period of 30 days after the initial 60-day period.

The Tribunal analyzed the provisions of Section 35(1) of the Act, emphasizing that the appeal must be filed within 60 days from the date of communication of the order. The proviso allows for a further period of 30 days for filing the appeal if sufficient cause is shown. The Supreme Court decision in Singh Enterprises clarified that the appellate authority cannot condone the delay beyond the 30-day extension period after the initial 60 days.

Ultimately, the Tribunal found that the appeal was filed beyond both the initial 60-day period and the extended 30-day period, making it ineligible for condonation of the delay. The Tribunal concluded that the Commissioner (Appeals) did not err in rejecting the appeal, as per the legal provisions and precedents cited. Therefore, the appeal was dismissed, upholding the decision of the Commissioner (Appeals).