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TMI Blog2019 (2) TMI 1822X X X X Extracts X X X X X X X X Extracts X X X X ..... des 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 two months, allow it to be presented within a further period of one month - The discretion of the Commissioner to condone the delay is, therefore, circumscribed by the condition set out in proviso and the delay can be condoned only if the appeal is presented within a further period of one month after the expiry of the statutory period of two months, provided of course, he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within a period of two months. In the present case, admittedly, the order of the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two appeals seek to assail the order dated 11 February, 2016 by which the Commissioner (Appeals) Customs, Central Excise Service Tax, Raipur has dismissed the appeals as having been filed beyond the period of two months and the extended period of one month from the date of communication of the Order. 2. It would be appropriate to first state the necessary facts. The Order was passed by the Additional Commissioner of Customs Central Excise, Bhopal on 30 August, 2013. This order was admittedly served upon the appellant on 20 September, 2013. Section 85(3A) of the Finance Act, 1994 provides that an appeal can be filed before the Commissioner (Appeals) within two months from the date of receipt of the decision or order of such authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was filed when he conveyed this fact to the appellant. Learned Counsel for the appellant submitted that the delay should be condoned and in support of his submission he has placed reliance upon a decision rendered by a learned member of the Bench of the Tribunal at Mumbai in Uapp India automotive Systems Pvt. Ltd., vs. CCE ST, Pune-I reported in 2019 (365) ELT 109 (Tri. Mumbai) and also on the decision of the Supreme Court in M. P. Steel Corporation vs. Commissioner of Central Excise reported in 2015 (319) ELT 373 (S.C.). Learned Counsel, therefore, vehemently urged that the delay in filing the appeal should be condoned. 5. Learned Representative of the Department has, however, placed reliance on the decision of the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. 8. A perusal of sub section (3A) of Section 85 clearly indicates that an appeal shall be presented within two months from the date of receipt of the order of the adjudicating authority in relation to service tax, interest or penalty. It further provides 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 two months, allow it to be presented within a further period of one month. The discretion of the Commissioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er period of thirty days. The provisions of Section 35 of the Central Excise Act, 1944 are paramateria with Section 85(3A) of the Finance Act. The Supreme Court held that the period upto which the prayer for condonation can be accepted is limited by the proviso to sub section (1) of Section 35 of the Act and the position is crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the expiry period of sixty days. In other words, the appellate authority can entertain the appeal by condoning the delay only upto 30 days beyond the normal period for preferring the appeal, which is 60 days. The Commissioner (Appeals) was, therefore, justified in dismissing the appeal on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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