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TMI Blog2019 (9) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... total time available for writ petitioner is 120 days and there is no disputation that these 120 days have elapsed. Whether there can be a direction to TNSTAT to condone delay beyond 120 days when there is a statutory cap? - HELD THAT:- When there is a cap, delay cannot be condoned under Section 5 of Limitation Act. Following a long line of case laws of Hon'ble Supreme Court in this regard, this Court passed an order to the effect that delay is not condonable beyond the period of cap when cap for condonation is statutorily prescribed - reliance can be placed in the case of M/S. AMMAN AGENCIES VERSUS THE APPELLATE DEPUTY COMMISSIONER (CT) [ 2019 (7) TMI 1 - MADRAS HIGH COURT] . This writ petition cannot be entertained - Petition dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT Act' for brevity. 6. A perusal of Section 58 TNVAT Act makes it clear that as far as the writ petitioner assessee is concerned, time limit for preferring an appeal before TNSTAT is 60 days from the date on which the order is served on the dealer/assessee. If an appeal is presented beyond the 60 days period, vide proviso to Section 58(1) of TNVAT Act, TNSTAT can condone the delay, but there is a cap of 60 days. Therefore, the total time available for writ petitioner is 120 days and there is no disputation that these 120 days have elapsed. 7. Therefore the question is whether there can be a direction to TNSTAT to condone delay beyond 120 days when there is a statutory cap. When there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise v. Hongo India (P) Ltd., reported in 2009 (236) ELT 417 (SC), Gopinath v. CESTAT, Chennai reported in 2013 (32) STR 172 (Mad.), Albert v. Commissioner of Service Tax, Chennai reported in 2015 (37) STR 187 (Mad.) and Saradha Travels v. Commissioner of Service Tax reported in 2015 (3) STR 433 (Mad.), held that the above decisions make it abundently clear that the appellate authority, has no powers to condone the delay, beyond the extendable period. 5. Following the above decisions that the appellate authority has no power to condone the delay, beyond the extendable period, this Court is inclined to set aside the order of the Writ Court, condoning the delay, by setting aside the order of the Appellate Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short the Limitation Act ) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the order of the Appellate Tribunal. 15. Considering the importance and significance, this Court deems it appropriate to extract 35H of Central Excise Act, which reads as follows: '35H Application to High Court. -(1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under Section 35-C passed before the 1st day of July, 2003(not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed is absolute and cannot extended. Be that as it may, in Singh Enterprises case, Hon'ble Supreme Court dealt with a case, where there is a provision of condonation of delay, but subject to a cap of 30 days. Dealing with this cap [paragraph 8, which has been extracted and reproduced supra], Hon'ble Supreme Court held that in cases, where such condonation of delay is provided, there is a complete exclusion of Section 5 of the Limitation Act. Therefore factual matrix in Singh Enterprises and case on hand mirror each other. 18. A perusal of Singh Enterprises case and Hongo India principles , brings to light the indisputable position that this Court cannot extend time by invoking provisions of Section 5 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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