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TMI Blog2018 (11) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ther Sections. Condonation of delay in filing appeal - Section 85 sub-clause (3) of the Finance Act - Held that:- As per Section 85 sub-clause (3) of the Finance Act, the appeal before Commissioner (Appeals) could have been filed within 60 days of such receipt of the order under challenge. The proviso to said Section empowers the Commissioner to condone the delay of subsequent 30 days. The Section makes it clear that the legislature has fixed a statutory limit for the purpose of any appeal to be filed before Commissioner (Appeals) - Commissioner (Appeals) has no discretion to condone the delay beyond 60 + 30 i.e. 90 days of the service of the order under challenge - delay cannot be condoned. There are no reasonable cause in the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has committed an error while applying Section 37 C of the Central Excise Act, 1944. It is impressed upon that the several clauses therein prescribes a step by step procedure for effecting service of the copy of any decision or order. The ld. Counsel has impressed upon that the said procedure has not been followed. The period of 3 months has to reckon from the date of receiving of the order. It is impressed upon that order has never been received by the appellant as is otherwise apparent from the various communications given by the appellant to the Department for enquiring the status of the appeal pending with Commissioner (Appeals). The endorsement; Lene Se Inkar as has been relied upon by the Commissioner is impressed upon to have neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 37 C of the CEA reads as follows:- 37C. Service of decisions, orders, summons, etc. (1) Any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served,- (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due, to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was served upon the appellant. However was refused to be received by him. Though the ld. Counsel has impressed upon that irrespective of the said remark, it does not amount to receipt of order. But the law has been settled that refusal to receive any process amounts to a sufficient service. 8. Otherwise also, as per Section 85 sub-clause (3) of the Finance Act, the appeal before Commissioner (Appeals) could have been filed within 60 days of such receipt of the order under challenge. The proviso to said Section empowers the Commissioner to condone the delay of subsequent 30 days. The Section makes it clear that the legislature has fixed a statutory limit for the purpose of any appeal to be filed before Commissioner (Appeals). Resultantly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear 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. The case laws as relied upon by the appellant are opined to be not applicable to the facts and circumstances of the present case. Because all the cases p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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