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2021 (4) TMI 118 - AT - CustomsCondonation of delay in filing appeal - time limitation - dismissed for the reason that the appeal had been filed even beyond the permissible time limit contemplated under section 128 of the Customs Act 1962 - HELD THAT - Section 35B of the Central Excise Act 1944, on which reliance has been placed in the aforesaid decision by the learned Member deals with Appeals to the Appellate Tribunal. It is true that section 35B does not contain a provision similar to section 35, wherein it is provided that an appeal has to be filed within 60 days from the date of the communication of the order but the Commissioner (Appeals) may, if he is satisfied that the appellant is provided by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of sixty days. Section 35 of the Excise Act would apply to Appeals before the Commissioner (Appeals), whereas section 35B would apply to Appeals before the Appellate Tribunal. Power under section 35B dealing with Appeals to the Appellate Tribunal cannot enable the Appellate Tribunal to condone any delay in filing the appeal before the Commissioner (Appeals) beyond the extended period of thirty days, after the expiry of the normal period of sixty days. The Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT categorically held that any delay beyond the extended period of thirty days after expiry of normal period of sixty days, cannot be condoned since the Statue does not permit and the provisions of section 5 of the Limitation Act would not apply. The decision of the Supreme Court in Singh Enterprises is binding. The decision of the Tribunal in Jagdish Ispat, therefore, does not lay down good law. The Tribunal does not have any power, much less discretionary power, to condone any delay beyond the extended period of thirty days after the expiry of the normal period of sixty days. Such being the position, it is not possible to accept the contentions of learned counsel for the appellant that the provisions of section 5 of the Limitation Act should be invoked even if the delay is beyond the extended period of thirty days or that the Tribunal has a discretionary power to condone any delay in filing the appeal even after the expiry of the extended period of thirty days - Commissioner (Appeals), therefore, committed no illegality is dismissing the appeal for the reason that any delay beyond ninety days could not be condoned. Appeal dismissed.
Issues Involved:
1. Timeliness of filing the appeal. 2. Applicability of Section 5 of the Limitation Act, 1963. 3. Tribunal's discretionary power to condone delay. Issue-wise Detailed Analysis: 1. Timeliness of Filing the Appeal: The appellant received the order from the Additional Commissioner of Customs on 13.4.2018 and filed the appeal before the Commissioner (Appeals) on 22.7.2018. Section 128 of the Customs Act, 1962 mandates that an appeal must be filed within sixty days from the date of communication of the order, with a possible extension of thirty days if sufficient cause is shown. The appellant filed the appeal beyond this ninety-day period. 2. Applicability of Section 5 of the Limitation Act, 1963: The appellant argued that the delay could be condoned under Section 5 of the Limitation Act, 1963. However, the Department contended that Section 128 of the Customs Act specifically governs the time limits for filing appeals and that the Limitation Act does not apply. The Tribunal referred to the Supreme Court's decision in Singh Enterprises vs. CCE, Jamshedpur, which held that the appellate authority has no power to condone delays beyond the statutorily provided period of thirty days after the initial sixty days. This decision emphasized that the language of the statute excludes the application of Section 5 of the Limitation Act. 3. Tribunal's Discretionary Power to Condon Delay: The appellant cited several precedents, including Collector, Land Acquisition Anantnag and Another vs. MST. Katiji, and M/s Jagdish Ispat Pvt. Ltd., to support the argument that the Tribunal has discretionary power to condone delays. However, the Tribunal clarified that its power to condone delays is limited to the periods specified in the statute. The Tribunal referenced the Supreme Court's ruling in Singh Enterprises, which clearly stated that the Tribunal, being a creature of statute, cannot condone delays beyond the permissible period. The Tribunal also discussed related cases, such as Diamond Construction vs. Commr. of Cus., C. Ex. & S.T., Jabalpur, and Uttam Sucrotech International (P) Ltd. vs. Union of India, which reinforced the principle that the appellate authority's discretion to condone delays is strictly limited by statutory provisions. Conclusion: The Tribunal concluded that the Commissioner (Appeals) acted correctly in dismissing the appeal as time-barred since it was filed beyond the permissible ninety-day period. The Tribunal also held that it does not have the power to condone delays beyond this period, as per the binding precedent set by the Supreme Court in Singh Enterprises. Consequently, the appeal was dismissed. Final Order: The appeal before the Tribunal is dismissed as the delay in filing the appeal cannot be condoned beyond the extended period of thirty days after the initial sixty days. The decision was pronounced on 01.04.2021.
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