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2023 (10) TMI 54 - HC - Central ExciseCondonation of delay in filing appeal before Commissioner (Appeals) - sufficient reason for delay provided or not - delay occurred on account of illness of appellant - HELD THAT - The plea of illness put forth by the appellant for explaining the delay caused in filing of the appeal to the Commissioner (Appeals) is on the face of the record untenable. The the demand notice of which the appellant is aggrieved was passed by the Assistant Commissioner, CGST, Dibrugarh Division on 01.05.2019. The limitation for filing appeal against this order to the Commissioner (Appeals) is 60 days which may be further extended by 30 days as per Section 35 of the Central Excise Act. The appellant has annexed the documents of his medical condition and the travel documents along with the writ petition, a perusal whereof would reveal that the appellant proceeded from Dibrugarh to Chennai on 02.07.2019 - the appellant was not suffering from any such medical condition from 01.05.2019 to 27.07.2018 which could have prevented him from filing an appeal against the order dated 01.05.2019 within the stipulated period of limitation. Law is well settled by a catena of judgments that the limitation for filing appeal as provided under Section 35 of the Central Excise Act overrides the provisions of Section 5 of the Limitation Act and hence, the delay cannot be condoned beyond 30 days from the statutory period of appeal i.e. 60 days of communication of the order to the aggrieved person. In the present case, admittedly the appellant filed the appeal against the order dated 01.05.2019 to the appellate authority i.e. Commissioner (Appeals) on 03.10.2019 which is well beyond the period of 60 days and further extended by 30 days. In the memo of appeal filed along with the writ petition, there is no indication justifying the reasons for delay in approaching the Commissioner (Appeals) against the order in original - on a perusal of the memorandum of appeal filed before the CESTAT, there are no justifiable cause because even in this memorandum, it is clearly stated that the order imposing service tax passed by the Assistant Commissioner was received by the appellant on 23.05.2019. As per discharge summary (page-31), the appellant was hale and hearty till 27.07.2018 on which date he was admitted in the hospital in relation to cardiac issues which manifested in the morning of 27.07.2018. The appellant was discharged from the hospital on 30.07.2018 but the appeal came to be filed as late as on 03.10.2019. Considering the statutory bar prescribed under Section 35 of the Central Excise Act and the law as laid down by Hon'ble the Supreme Court in the judgments, the appeal to the Commissioner (Appeals) could not have been entertained on merits as the same was time barred - reliance can be placed in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT . The judgment relied upon by the appellant's counsel in M/S. SHEKHAR RESORTS LIMITED (UNIT HOTEL ORIENT TAJ) VERSUS UNION OF INDIA ORS. 2023 (1) TMI 256 - SUPREME COURT dealt with the extension of a scheme issued under the service tax regime. In the said case, Hon'ble the Supreme Court held that the appellant therein was not responsible for not availing the benefits of the scheme in time. Thus, the said judgment is clearly distinguishable that the same has no application to the controversy at hand - In the case of COMMISSIONER OF INCOME-TAX VERSUS PHEROZA FRAMROZE AND CO. 2017 (5) TMI 436 - SUPREME COURT , the Hon'ble Supreme Court while considering the provisions of Section 268 of the Income Tax Act, held that the High Court has inherent jurisdiction to condone the delay. The said judgment also, does not deal with the mandatory provisions of the Central Excise Act and hence, is not applicable for deciding the controversy involved in this appeal. Thus, the CESTAT was absolutely justified in refusing to entertain the appeal filed by the appellant and in refusing to direct the Commissioner (Appeals) to condone the delay in filing of the first appeal, as stated above. As a consequence, the appeal lacks merit and is dismissed.
Issues Involved:
The appeal under Section 35G of the Central Excise Act against the final order dismissing the appeal due to delay and affirming the demand raised for financial years 2013-14 to 2016-17. Delay in Filing Appeal: The appellant argued for condonation of delay citing illness of the partner. However, the Court found the plea untenable as the medical condition did not prevent timely filing of the appeal within the statutory limitation period. The law overrides provisions of the Limitation Act, and the delay cannot be condoned beyond the statutory appeal period. The appeal to the Commissioner (Appeals) was filed well beyond the prescribed period, and no valid reason was provided for the delay. The appellant's medical condition did not justify the delay, as evidenced by hospital records. The Court emphasized that the statutory bar under the Central Excise Act and Supreme Court precedents do not allow for condonation of such delays. The judgments cited by the appellant were deemed inapplicable to the current case, as they did not pertain to the mandatory provisions of the Central Excise Act. Conclusion: The Court held that the CESTAT was justified in refusing to entertain the appeal and direct condonation of delay by the Commissioner (Appeals). Consequently, the appeal was dismissed for lacking merit based on the established legal principles and precedents.
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