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TMI Blog2018 (8) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. - Appeal No. ST/86302/18 - A/86775/2018 - Dated:- 21-6-2018 - Dr. Suvendu Kumar Pati, Member (Judicial) Ms. Mithila Shelar, Advocate for the appellant Shri Dilip Shinde, (AR) for the respondent ORDER Refusal by the Commissioner (Appeals) to condone the delay of 79 days to file appeal against adjudication order passed by the Joint Commissioner, Central Excise, Pune II is challenged before this Tribunal along with a prayer to set aside the said adjudication order on the ground stated in the appeal memo. As per the statement of the appellant, notice was received on 17.08.2016 during the absence of commercial head who was attending audit at Chennai plant and the person in charge of Excise matter left his job fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with audit in Chennai plant appear to be reasonable. Procedure is a handmade of judiciary system enumerated to put a curb on the uncertainty and bring an end to the litigation but on that score alone, substantial justice cannot be jeopardised. 3.1 The other grounds mentioned in the appeal memo including classification of taxable service and tax liability of the appellant is required to be adjudicated upon by the Commissioner (Appeals) to promote ends of justice. In such circumstances, I find it a fit case where delay can be condoned at this end and the matter can be remanded back for fresh adjudication by the Commissioner (Appeals). Hence the Order 4. The delay of 79 days is condoned and the order passed by the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Apex court cited supra, the following amendments by way of rectification is made to the order pronounced on dated 21.06.2018 3. It was pointed out during the course of hearing of appeal by ld. AR Shri Dillip Shinde for the respondent that in Singh Enterprises case, power of Hon'ble High Court/Hon'ble Supreme Court to direct condonation of delay when the statute prescribed particular period of limitation was discussed and the same was held in the negative for which this Tribunal is also not competent to condone such delay beyond 60 plus 30 days of receipt of the order-in-original to file appeal before Commissioner (Appeals). 4. Perused the judgment in detail and it is found that the Division bench of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was complete exclusion of Section 5 of the Limitation Act. It was also held by the Hon'ble Supreme Court in the said decision that in the case law referred, there was no law declared by this Court (SC) that even though the statute prescribed a particular period of limitation this Court can direct condonation. While holding that such a situation would render a specific provision providing for limitation otiose, the Hon'ble Supreme Court had also found the causes shown for condonation have no acceptable value for which appeal was also dismissed and the order of Commissioner in not condoning delay attained finality. 6. At the outset it has to be pointed out that nowhere in the said Singh Enterprises judgment, jurisdiction of this T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of experience in business attributed to such delay, was not acceptable to the Hon'ble Supreme Court as the Division bench had observed that the causes shown for condonation have no acceptable value. 9. Going by the bare comparison between the proviso to Section 35 dealing with power of the Commissioner (Appeals) permitting Appellant to present appeal after 60 days (not exceeding 30 more days) and the Section 35 (B) sub-Section 5 in admitting appeal after the due date, it can be said that the Commissioner (Appeals) is empowered to permit appellant to present appeal by extending the time while Appellate Tribunal is empowered to admit appeal in condoning delay, though for filling cross objection, it is having similar power to that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in intended to afford protection to litigants. The principle of the saving clause under Section 29 of Limitation Act may also be taken into consideration since the jurisdiction of this Appellate Tribunal has not been expressly excluded. This reasoning is further fortified by the fact that Article 323B (i) of the Constitution of India empowers this Tribunal to deal with any matter incidental to the matter specified in clause (a) to (h) including levy, assessment collection and enforcement of any tax etc. and it would be against the spirit of law if the legality of such taxability could not be scrutinized by the Tribunal on such technical considerations. 11. Now coming to the jurisdiction of this Tribunal to condone the delay at this end, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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