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TMI Blog2003 (11) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the claimant could not prove that they had not passed on the burden of the above duty to their customers. An appeal against the Assistant Commissioner s order was filed with the Commissioner (Appeals) on 14-11-2002 and the same was dismissed as time-barred. Hence the present appeal of the party. 2. We have heard both the sides. The Counsel for the appellants gave an account of the facts pertaining to the delay involved in the filing of appeal with the lower appellate authority. The appellants factory was lying closed since 1996 due to labour trouble. On account of the lock-out, the Assistant Commissioner s order returned undelivered. Though the order was subsequently (on 9-4-2001) served on Shri Rajesh Goyal, Vice-Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee s appeal on its merits. In this connection, Counsel relied on the Supreme Court s order in ITC Ltd v. Union of India, 1998 (101) E.L.T. 9 (S.C.). Reliance was also placed on the Apex Court s decision in the case of Collector v. Mst. Katiji and others, 1987 (28) E.L.T. 185 (S.C.). 3. The DR submitted that the Commissioner (Appeals) could condone delay of appeal upto thirty days only at the material time and that the Limitation Act was not applicable to appeals preferred to him. The learned DR relied on the Supreme Court s decisions in the cases of Commissioner of Sales Tax v. Parson Tools and Plants, [AIR 1975 SC 1039] and Sakuru v. Tanaji, 1985 (22) E.L.T. 327 (S.C.). It was further submitted that the appellants had not succeeded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abad (whereby the Commissioner had held that he had no power under Section 35 of the Central Excise Act to condone delay of more than thirty days and accordingly, dismissed as time-barred an appeal of the assessee, which had been filed with a delay of 99 days) and directed him to reconsider the assessee s application for condonation of delay of appeal under the provisions of the Limitation Act. In both the cases of M/s. Eureka Forbes Ltd and M/s. Jai Hind Bottling Company (P) Ltd., the decisions were rendered by learned Single Judges of the High Court. However, with great respect, we are unable to follow their ruling as we are bound to follow the contrary ruling given by a Division Bench of the Bombay High Court in N.B. Golangada v. Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay. Reference was made to Section 5 of the Indian Limitation Act, 1963 and it was urged that the Collector could have condoned the delay by calling for an explanation from the petitioner, and on being satisfied that there was reasonable cause for preferring the appeal beyond time. We are afraid, the provisions of Section 5 will not be applicable to appeals provided in the Central Excises and Salt Act, 1944 which is a special Act which provides for appeals and prescribes a special period of limitation for appeals. The authority exercising power of appellate authority under Section 35 is not a court and, therefore, the provisions of Section 5 could not be invoked. Moreover, in view of the provision of Section 29 also it cannot be said that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, The above ruling squarely applies to the instant case and supports the impugned order. In Sakuru s case (supra) the Supreme Court has reaffirmed the view that the provisions of the Limitation Act would apply only to proceedings in courts and not to appeals or applications before quasi-judicial tribunals or executive authorities. Following the rulings of the Supreme Court and the Bombay High Court, we hold that the lower appellate authority had no power to condone any delay of appeal in excess of thirty days prescribed under the proviso to Section 35(1) of the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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