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TMI Blog2014 (4) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the appeal as a consequence of rejection of the application for condonation of delay, we refrain from going into the substantive merits of the appeal. Suffice it to notice that prima facie, the appellant herein appears to have an eminently arguable case on merits, to be presented before the Commissioner (Appeals), though the appeal was filed with delay not wholly explained satisfactorily - Delay condoned conditionally. - Appeal No.ST/55692 of 2013-CU (DB) - Final Order No.51065/2014 - Dated:- 11-3-2014 - Shri G. Raghuram and Shri Rakesh Kumar, JJ. For the Appellant : Shri Bipin Garg, Advocate For the Respondent : Shri Govind Dixit Shri Yashpal Sharma JUDGEMENT Per G. Raghuram: Heard ld. Counsel for the appellant and ld. Departmental Representative for the respondent. 2. At the stage of considering the stay application, we dispose of the appeal, since a short issue is involved. We have heard the Counsel/representative of the parties and dispose of the appeal. 3. The appeal is preferred by an assessee against the order of the Commissioner (Appeals), Customs, Central Excise, Allahabad dated 02.11.2012 rejecting the appeal on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on terms and the delay condoned. 8. Ld. Departmental Representative contends that there is no merit in the present appeal. According to Revenue, the appeal was preferred beyond the further period of three months as well and therefore the appellate Commissioner had no discretion to condone the delay. According to the Revenue since the primary order was received by the assessee on 8.10.2011, the normal period for preferring an appeal would be 90 days from that date and further period of three months falling within the discretionary locus of the appellate Commissioner was 90 days beyond the initial period of 90 days i.e. 180 days in all from 8.10.2011. 9. Shri Dixit for the Revenue would contend that thought the legislative prescription is three months as initial period for preferring appeal and a further three months within which discretion could be exercised by the appellate commissioner to condone the delay, the period should be considered as 90 days and a further 90 days, in all, 180 days. Reliance is placed for on this is rather creative proposition on the judgement of the Supreme Court in Commissioner of Customs Central Excise Vs. Hongo India (P) Ltd. reported in 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des 90 days time for filing revision by the Central Government and, proviso to the same enables the revisional authority to condone the delay for a further period of 90 days, if sufficient cause is shown, whereas in the case of appeal to the High Court under Section 35 G and reference to the High Court under Section 35 H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference. However, there is no further clause empowering the High Court to condone the delay after the period of 180 days. 14. It is brought to our notice by Shri Dixit, Section 35 EE (2) of the Central Excise Act, 1944 provides a limitation period of 3 months for filing a revision to the Central Government and the proviso thereto enables the revisional authority to condone the delay for a further period of 3 months if sufficient cause is shown. From the narrative in the judgement set out in para-12 (extracted above),Revenue contends that period of limitation prescribed in a legislation in terms of a month should mean a period of 30 days, as a norm. 15. The contention that a period of limitation stipulated in terms of month must mean 30 days is not supported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulated period to allow it to be presented within a further period of three months. 21. In the light of clear enunciation of the purport of the expression month used in the above provision, considered in the light of the judgement in Tamal Lahiri, it is clear an appeal if presented within a further period of 3 calendar months, beyond the initial period of three months specified in Section 85(3) and in terms of the proviso thereto, would fall within the discretionary ambit of the Commissioner (Appeals), liable for consideration. 22. We notice that in seeking condition of delay, the appellant provided not clear and cogent grounds for seeking condonation except stating that the appellants representative was out of station. On the basis of the material on record in this appeal, it does not appear that specific reasons were pleaded, explaining the delay by adverting to the dates on which the appellants representative was out of station; the reasons for such absence; or other germane particulars to justify condnation of delay. On this factual matrix, the appellant herein had failed to make out a case for condonation. There are, however, several decisions, which postulate the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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