2022 (4) TMI 215 - AT - Customs

Condonation of delay in filing appeal - appeal filed beyond the period of limitation contemplated under section 128 of the Customs Act, 1962 - HELD THAT - It would seen from provisions of Section 128, that an appeal can be filed before the Commissioner (Appeals) within sixty days from the date of communication to him of such decision or order. However, the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. Thus, at best the delay of thirty days beyond the stipulated limit of sixty days in filing the appeal by can be condoned, provided of course that the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of sixty days. This issue came up for decision before the Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT . The Supreme Court examined the provisions of section 35 of the Central Excise Act, 1944, which are para materia to the provisions of section 128 of the Customs Act and observed that the delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days, which is the normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and the High Court were justified in holding that there was no power to condone the delay after the expiry of 30 days period and that the provisions of the Limitation Act would not be applicable. A Division Bench of the Tribunal in M/S DIAMOND CONSTRUCTION, M/S SAI SHREE CONSTRUCTION VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE SERVICE TAX 2019 (2) TMI 1822 - CESTAT NEW DELHI , in which the provisions of section 85 (3A) of the Finance Act 1994 relating to appeals to the Commissioner of Central Excise (Appeals) came up for consideration, after placing reliance upon the decision of the Supreme Court in Singh Enterprises, observed that the discretion of the Commissioner to condone the delay is circumscribed by the conditions set out in the proviso and any delay beyond that period cannot be condoned. In the present case, it is not in dispute that the order dated 08.01.2014 was received by the appellant on 09.01.2015. The appeal was required to be filed within a period of 60 days from this date and the Commissioner (Appeals) had the power to condone any delay of 30 further days provided the appellant could satisfy, the Commissioner (Appeals) that the appellant was prevented by sufficient cause from presenting the appeal within stipulated period - The Commissioner (Appeals) was, therefore, justified in dismissing the appeal for this reason. Appeal dismissed.

Summary

Issues:
1. Appeal filed beyond the period of limitation under section 128 of the Customs Act.
2. Whether the Commissioner (Appeals) could entertain an appeal filed beyond the stipulated time frame.
3. Interpretation of section 128 of the Customs Act regarding appeals to Commissioner (Appeals).
4. Precedents and legal principles regarding condonation of delay in filing appeals.

Detailed Analysis:
Issue 1: The judgment deals with an appeal filed by M/s. Farishta Exports challenging the rejection of their appeal by the Commissioner (Appeals) due to being filed beyond the period of limitation under section 128 of the Customs Act. The appellant received the order on 09.01.2015 but filed the appeal on 05.01.2016, beyond the stipulated time frame.

Issue 2: The matter was listed multiple times, with adjournments sought, but no one appeared to press the appeal. The authorized representative for the Department argued that the Commissioner (Appeals) could not entertain an appeal filed beyond the 30-day extension period after the initial 60-day limit, as settled in previous decisions.

Issue 3: Section 128 of the Customs Act allows appeals to be filed within sixty days from the date of communication of the decision or order, with a provision for a further 30-day extension if the appellant was prevented by sufficient cause. The Supreme Court decision in Singh Enterprises emphasized the limitation on condoning delays beyond the prescribed period.

Issue 4: Precedents such as Singh Enterprises and Diamond Construction cases highlight that the appellate authority's power to condone delays is limited by statutory provisions. The discretion to allow appeals beyond the specified time frame is circumscribed by the conditions set out in the relevant provisions, with no scope for condonation beyond the permissible period.

The judgment underscores the importance of adhering to statutory timelines for filing appeals and the limited scope for condonation of delays beyond the prescribed periods. The decision reaffirms the principles laid down in previous cases regarding the interpretation of statutory provisions governing the timelines for filing appeals before appellate authorities.