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TMI Blog2015 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner for not filing the appeal in time. The present appeal was beyond the statutory period of 90 days and the authority has rightly rejected the same, since he cannot be expected to exercise his discretionary power beyond the permissible period that was prescribed by the statute. - Decided against assessee. - W. P. Nos. 5457 and 5458 of 2015 - - - Dated:- 18-3-2015 - The Honourable Mr. Justice S. Vaidyanathan,JJ. For the Petitioner : Mr.Hari Radhakrishnan For the Respondent : Mr. A. P. Srinivas ORDER The Writ Petitions in W.P.Nos.54457 and 5458 of 2015 have been filed, praying for the relief of issuance of a writ of ceriorari to call for the records pertaining to the Order-in-Original No.15733/2011 dated 25.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Customs may appeal to the Commissioner (Appeals) within within sixty days from the date of the communication to him of such decision or order: Provided that 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. (1-A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing; Provided that no such adjournment shall be granted more than three times to a party during hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the appeal within the sixty days prescribed. In fact, while exercising such discretionary power, the authority can condone the delay upto 90 days on sufficient cause shown by the petitioner for not filing the appeal in time. The present appeal was beyond the statutory period of 90 days and the authority has rightly rejected the same, since he cannot be expected to exercise his discretionary power beyond the permissible period that was prescribed by the statute. 7. As regards the issue whether the High Court has power to condone the delay after the expiry of 30 days period, a useful reference can be made to a decision reported in Singh Enterprises versus CCE (2008) 3 SCC 70, wherein, the Hon ble Supreme Court, interpreted Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. (emphasis added) 8. The above said decision was followed by the Hon ble Supreme Court in its subsequent decision reported in Commissioner of Customs and Central Excise versus Hongo India Private Limited and another (2009) 5 SCC 791, wherein, the question for determination came up before it, was whether the High Court has power to condone the delay in presentation of the reference application under unamended Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Central Excise Act relating to filing of reference application to the High Court. 36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act. 37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the reference application filed by the Commissioner under unamended ..... X X X X Extracts X X X X X X X X Extracts X X X X
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