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TMI Blog2014 (11) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... of its discretion. Once it is held that the Tribunal did, indeed, have a discretionary jurisdiction, as a first appellate body against the order of the Commissioner (Appeals), this Court would be slow to interfere, particularly having regard to the ambit of the jurisdiction of the Tribunal under Section 86(1) of the Act of 1994. The High Court, in this view of the matter, ought not to substitute its own view in the exercise of discretion where the discretion which has been exercised by the Tribunal is within the parameters of law and the Tribunal is not found to have acted outside its jurisdiction. Consequently and for these reasons, we find that no substantial question of law would arise. - Decided against Revenue. - Central Excise Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner also imposed a penalty of ₹ 5,000/- under Section 77 and ₹ 45.77 lacs under Section 78 of the Act of 1994. A copy of the order of adjudication was received by the assessee on 8 October 2011. An appeal against the order of adjudication was filed before the Commissioner of Central Excise (Appeals) on 9 April 2012. An application for condonation of delay was also filed. The Commissioner (Appeals), by an order dated 2 November 2012, dismissed the appeal as being barred by limitation and declined to condone the delay. The Tribunal on appeal, held that: (i) the period of limitation prescribed under Section 85(3) of the Act of 1994 was three months, which meant three calendar months and not 90 days; (ii) under the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months : [(3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause from presenting the appeal within a period of three months, to allow it to be presented within a further period of three months. Parliament has used the expression three months both while quantifying the original period of limitation as well as while defining the extent to which a delay beyond three months can be condoned. Now, at the outset, it must be noted that the maximum period within which an appeal can be presented before the Commissioner of Central Excise (Appeals), can in no circumstances, exceed six months. This period of six months is comprised of the original period of three months and, if sufficient cause is shown, a further period of three months beyond which the delay cannot be condoned. Once the outer limit of time a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression month is also defined in Section 3(35) of the General Clauses Act, 18974 to mean a month reckoned according to the British calendar. The issue before the Court is not res integra. A similar provision came up for consideration before a Bench of three learned Judges of the Supreme Court in Tamal Lahiri Vs Kumar P.N. Tagore5. In that case, the provisions of Section 533 of the Bengal Municipal Act, 1932, stipulated a period of limitation for filing a prosecution under the Act by providing that no prosecution for an offence under the Act, shall be instituted except within six months next after the commission of such offence. Explaining the import of the expression six months , the Supreme Court observed as follows; 6...The only qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 9 of the Act of 1897. Section 9 stipulates that in any Central Act, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word from . This provision has been construed in the judgement of the Supreme Court in Saket India Limited Vs India Securities Limited6, to require the exclusion of the day from which the period is to be reckoned in computing the period of limitation. Since the order was received by the assessee on 8 October 2011, that day would be excluded in computing the period of limitation. Since the period of limitation expired on a public holiday and the appeal was filed immediately on the next working day. The Commissioner (Appeals) was not bereft of jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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