2020 (2) TMI 1008 - AT - Central Excise

Condonation of delay in filing appeal - Clandestine Removal - MS ingots - time limitation - limitations to file the appeal before Commissioner Appeals and the mandatory payment @ of 7.5% of the demand confirmed was also made by the Appellant that too within 60 days of receiving the order in original - HELD THAT - Unless and until there is a statutory mandate of extending the prescribed period to a particular period/number of days that the Section 5 of Limitation Act will be applicable. Section 29 of Limitation Act reiterate the same position that even for special laws in absence of specific provision for extending the prescribed time but for a particular limit that Section 4 to 24 of the limitations Act only will be applicable. However, Section 35 of Special Act i.e. Central Excise Act limits the power of Commissioner Appeals to condone the delay in filing appeal, only to a period of 30 days after the period of 60 days from the date of receipt of the order to be challenged as is filed before him. The said observation is sufficient to hold that in case of Section 35 of Central Excise Act, the power of Commissioner (Appeals) to condone he delay in fling appeals is restricted to a particular period Section 5 29 of Limitations Act will not be applicable. Learned Apex Court in the case of Singh Enterprises 2007 (12) TMI 11 - SUPREME COURT has held that Commissioner of Central Excise Appeals as also the Tribunal being the creatures of statute are vested with the jurisdiction to condone the delay beyond the permissible period provided under the statute. However, where the period upto which the prayer for condonation can be accepted is statutorily provided, the logic of Section 5 of Indian Lamination Act shall not be available for the condonation of delay. Commissioner (Appeals) had no option but to dismiss the appeal being time barred as the delay was more than 30 days. But keeping in view, the power of this Tribunal and that the delay is attributable to the Counsel of the appellant that the said delay is hereby condoned - Since the decision of Commissioner (Appeals) is not on the merits, the matter is remanded back to Commissioner (Appeals) to take decision on the merits of the impugned appeal - Appeal allowed by way of remand.

Summary

Issues:
1. Appeal against order confirming demand and penalty due to clandestine removal of goods dismissed on grounds of limitation.
2. Applicability of Section 5 of Limitation Act for extending prescribed period.
3. Consideration of cause for delay in filing appeal.
4. Statutory limitation for condonation of delay by Commissioner (Appeals).
5. Power of Tribunal to condone delay beyond statutory period.
6. Delay attributed to Counsel and its impact on condonation.

Analysis:

1. The appeal was filed challenging an order confirming demand and penalty on the Appellant for clandestine removal of goods, which was dismissed by the Commissioner (Appeals) solely on the basis of limitation.

2. The Appellant argued for the extension of the prescribed period under Section 5 of the Limitation Act, emphasizing the applicability of this provision even in special laws unless expressly excluded.

3. The Appellant contended that the cause for delay, attributed to the Counsel, was sufficient to explain the delay in filing the appeal, as the Appellant had been diligent in complying with the requirements within the stipulated time.

4. The Learned DR relied on the statutory limitation provided under Section 35 of the Excise Act, which restricts the power of the Commissioner (Appeals) to condone delay beyond a specific period, as established by the Hon'ble Supreme Court in previous judgments.

5. The Tribunal analyzed the power to condone delay beyond the statutory period, noting that while the Commissioner (Appeals) is bound by specific limitations, the Tribunal has the authority to assess the reasons for delay and determine if they merit condonation.

6. Considering the delay attributed to the Counsel and the principles of substantial justice over technicalities, the Tribunal concluded that the delay was not the fault of the Appellant and thus, decided to condone the delay, remanding the matter back to the Commissioner (Appeals) for a decision on the merits of the appeal.

This comprehensive analysis of the judgment highlights the legal arguments presented, the statutory provisions invoked, and the ultimate decision of the Tribunal in granting relief to the Appellant based on the circumstances surrounding the delay in filing the appeal.