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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 ..... 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 delay beyond 30 days, which is contrary to the plain provisions of Section 35? 5. Whether the Tribunal is correct in not deciding the appeal on merits, when the issues are squarely covered in favour of the appellant on merits" 2. Supporting the substantial questions of law, Mr.G.Natarajan, learned counsel for the appellant submitted that as per Section 35 of the Central Excise Act, 1944, when any person aggrieved by any decision or order passed under Central Excise Act, 1944, by a Central Excise Officer lower in rank than a Principal Commissioner of Central Excise or Commissioner of Central Excise) m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interpretation, a proviso carves out an exception to the main enactment and in the absence of the proviso, the main enactment would cover the subject covered in the proviso also. With regard to filing of appeals before the Tribunal, he further submitted that as per sub section (3) of Section 35B, an appeal shall be filed within three months, which is a substantial mandatory requirement and that no appeal can be filed after the expiry of the three months period. Sub Section (5) of Section 35 B grants a discretionary power to the Tribunal to condone any delay, without any limit, if sufficient cause was shown. 6. Referri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral 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 and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority, relating to service tax, interest or penalty under this Chapter made before the date on which the Finance Bill, 2012 receives the assent of the President: 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 three months, allow it to be presented within a further period of three months. (3A) An appeal shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C)}, 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 Excise and Service Tax, Ranchi, dismissing the appeal filed by the appellant under Section 35 of the Central Excise Act, 1944 (in short the 'Act'). The said order was challenged before the High Court by filing a writ petition. The Commissioner had dismissed the appeal only on the ground that it was filed after 21 months of the date of service of the original order and the appellate authority did not have power to condone the delay beyond the period of 30 days from the date of expiry of period of 60 days prescribed for filing the statutory appeal. 3. The Division Bench noted that since the Commissioner had no power of condonation beyond the statutorily pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient 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 categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business, there was delay does not stand to be reason. I.T.C.'s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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