2021 (5) TMI 132 - AT - Customs

Maintainability of appeal - time limitation - appeals were filed before the Commissioner (Appeals) beyond the period of 90 days, which is an admitted fact - HELD THAT - The appeal before the Commissioner (Appeals) was filed beyond 90 days. As per the provisions of Section 128, learned Commissioner (Appeals) has power to condone the delay of 30 days after the normal period of 60 days. Since the appeal was filed beyond 90 days, learned Commissioner (Appeals) has no power under the statute to condone the delay over and above 90 days, accordingly the appeal was dismissed. This issue has been considered by various Courts including the Hon ble Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT and it was consistently held that the statutory time period of 90 days i.e. 60days plus 30 days, is provided and beyond 90 days no power is vested with Commissioner (Appeals) to condone the delay. The appellate authority has no power to condone the delay beyond the said 30 days - since the Commissioner (Appeals) has no power to condone the delay of beyond 90days, the impugned order does not bear any infirmity - appeal dismissed.

Summary

Issues:
1. Appeal filed beyond the statutory period of 90 days before the Commissioner (Appeals).
2. Request for condonation of delay in filing the appeal.
3. Interpretation of Section 128 of the Customs Act, 1962 regarding the time limit for filing appeals.

Analysis:
1. The appeal was filed before the Commissioner (Appeals) beyond the statutory period of 90 days, leading to its dismissal on the ground of being time-barred. The appellant, represented by a consultant, argued that Anti Dumping Duty was not payable as they were a 100% Export Oriented Unit (EOU), and the duty was paid under protest, making it refundable. However, the delay in filing the appeal was admitted. The Revenue, represented by a Superintendent, supported the findings of the impugned order, emphasizing the time-bar issue.

2. The Commissioner (Appeals) dismissed the appeals citing Section 128 of the Customs Act, 1962, which mandates appeals to be filed within 60 days with a provision for a further 30-day extension. The Commissioner held that the appeals were filed beyond the extended period of 90 days, making them time-barred. The law does not provide for condonation of delay beyond the additional 30 days. Various judgments were presented, including one by the Hon'ble Supreme Court, supporting the strict adherence to the statutory time period of 90 days, with no power vested in the Commissioner (Appeals) to condone delays beyond this limit.

3. The Tribunal affirmed the Commissioner (Appeals)' decision, stating that since the appeal was filed beyond the 90-day statutory limit, the Commissioner (Appeals) had no authority to condone the delay. Citing precedents and settled legal positions, including a case upheld by the Larger Bench of the Gujarat High Court and a judgment by the Hon'ble Supreme Court, it was established that the time limit of 90 days (60 days plus a further 30 days) is absolute, and any delay beyond that cannot be condoned. Therefore, the impugned order was upheld, and the appeal was dismissed, as the Commissioner (Appeals) lacked the power to extend the time limit beyond 90 days.

This detailed analysis of the judgment highlights the key issues of filing appeals beyond the statutory period, the request for condonation of delay, and the interpretation of Section 128 of the Customs Act, 1962 regarding the time limit for filing appeals.