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TMI Blog2018 (9) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos.41159-41168 of 2017, dated 29/6/2016, on the file of CESTAT, on the following substantial questions of law:- 1. Whether the Tribunal is correct in upholding the order of the Commissioner (Appeals), which has been passed ex-parte in violation of the principles of natural justice? 2. Whether Tribunal is correct in dismissing the appeal filed by the appellant, on the only ground that the order of the Commissioner (Appeals) dismissing the appeal on the ground of delay is correct, on the basis of the conclusion that the Commissioner (Appeals) did not have the power to condone a delay of more than thirty days, when there is no such restriction on the powers of the Commissioner (Appeals) to condone the delay in filing beyond 30 days? 3. Whether the Tribunal is correct in coming to the above conclusion when the main provisions of Section 35 (1) do not prescribe a mandatory time limit for filing the appeal? 4. Whether the Tribunal is correct in not appreciating the difference between the provisions of Section 35 (1), 35 B (3) and 35 B (3) of the Central Excise Act, 1944 and coming to a conclusion that the Commissioner (Appeals) is not having any powers to condone a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin such mandatory time limit, has been prescribed without any limits. According to the appellants, where the time limit for filing the appeal before the commissioner (Appeals) is not prescribed as a mandatory condition, the power to condone the delay in filing the appeal thereunder, should not be interpreted to restrict the power of the Commissioner (Appeals) to condone any delay beyond the period prescribed therein, if sufficient cause is shown for the delay. 4. Learned counsel for the appellants have further submitted that the proviso to sub section (1) of Section 35 of the Central Excise Act, 1944 is not laying down any restriction on the authority of the Commissioner (Appeals) to condone any delay in filing the appeal beyond the prescribed period and it is the discretionary power either to condone the delay or not to condone the delay, when such delay is upto 30 days. The proviso is not curtailing the power of the Commissioner (Appeals) to condone any delay beyond thirty days and when it was the intention of the legislature, the proviso would have been worded differently. 5. Learned counsel for the appellants further submitted that as per the settled principles of inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. If for any sufficient cause, the appellant was prevented from presenting the appeal within the aforesaid period of 60 days, then the Commissioner of Appeals shall allow the appeal to be presented within a further period of 90 days. Thus, it could be seen that beyond 90 days, the Commissioner of Appeals has no bar to condone the delay in filing an appeal to the Commissioner. 9. As per explanation to Section 35 B (3) of the Central Excise Act, 1944, an appeal under this Section shall be filed within three months from the date on which order sought to be appealed against is communicated to the Principal Commissioner of Central Excise, or Commissioner of Central Excise, or, as the case may be, the other party, preferring the appeal. 10. Section 85 of the Finance Act, 1944 deals with appeals to the Commissioner of Central Excise (Appeals) and the said Section is extracted hereunder: (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). (2) Every appeal shall be in the prescribed form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority, we are not inclined to accept the said contention, for the reason that a bare reading of Section 35 of the Central Excise Act, 1944 and the explanation thereof, makes it clear that appeal under the said Section shall be filed within three months from the date on which the order sought to be appealed. The usage of the expression, as the case may be , is referable only to the appellate authority, before whom the appeal is filed i.e., the Principal Commissioner of Central Excise or the Commissioner of Central Excise, as the case may be. 12. That apart, in Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur, {2008 (221) ELT - 163 (SC)}, the Hon'ble Apex Court, dealt with a similar case as to whether the Tribunal has powers to condone beyond the statutory period prescribed for filing an appeal. 13. Short facts leading to the file of appeal in Singh Enterprises's case are as hereunder:- 2. Challenge in this appeal is to the order passed by a Division Bench of the Jharkhand High Court dismissing the writ petition filed by the appellant. Before the High Court, appellant had challenged the order passed by the Commissioner (Appeals), Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 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. 9. Learned counsel for the appellant has emphasized on certain decisions, more particularly, I.T.C's case (supra) to contend that the High Court and this Court in appropriate cases condoned the delay on sufficient cause being shown. 10. Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period. From the application for condonation of delay, it appears that the appelalnt has ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s Co-operative Society Ltd.,'s case, squarely applies to the case on hand, wherein, a Hon'ble Division Bench held as follows: (c) While the High Court exercising the jurisdiction under Article 226 of Constitution of India, approves the correctness of the order of the appellate authority, it has no power to direct the appellate authority to consider the appeal on merits as otherwise it would be nothing but Court extending the period of limitation. (d) Even if the High Court accepts the explanation given by the assessee for not filing the appeal within the period prescribed under the Act, it cannot direct the appellate authority to consider the matter on merits as the High Court exercising jurisdiction under Article 226 of Constitution of India, cannot re-write the provisions of the Act. 38. In the light of the above discussion and decisions, we are not inclined to interfere with the order of the Writ Court. Hence, Writ Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed. 17. Though reasons assigned, may appear to be sufficient, statute does not provide condonation beyond the period provided therefor. If the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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