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TMI Blog2021 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with Appeals to the Appellate Tribunal cannot enable the Appellate Tribunal to condone any delay in filing the appeal before the Commissioner (Appeals) beyond the extended period of thirty days, after the expiry of the normal period of sixty days. The Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [ 2007 (12) TMI 11 - SUPREME COURT] categorically held that any delay beyond the extended period of thirty days after expiry of normal period of sixty days, cannot be condoned since the Statue does not permit and the provisions of section 5 of the Limitation Act would not apply. The decision of the Supreme Court in Singh Enterprises is binding. The decision of the Tribunal in Jagdish Ispat, therefore, does not lay down good law. The Tribunal does not have any power, much less discretionary power, to condone any delay beyond the extended period of thirty days after the expiry of the normal period of sixty days. Such being the position, it is not possible to accept the contentions of learned counsel for the appellant that the provisions of section 5 of the Limitation Act should be invoked even if the delay is beyond the extended period of thirty days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the following decisions: (i) Collector, Land Acquisition Anantnag and Another vs. MST. Katiji and others 1987 (28) E.L.T. 185 (S.C.) ; (ii) Kothari Sugars and Chemicals Ltd. vs. Asstt. Commr. of C. Ex.-I, Trichy 2018 (361) E.L.T. 643 (Mad.) ; and (iii) M/s Jagdish Ispat Pvt. Ltd. vs. The Commissioner Excise Appeal No. 52382 of 2018 (SM) decided on 28.11.2019 4. Shri Sunil Kumar, learned Authorized Representative for the Department, however, submitted that the when section 128 of the Customs Act deals with limitation for filing the appeal and also the period which can be condoned, any delay in filing the appeal beyond the extended period of thirty days contemplated under section 128 cannot be condoned. The contention, therefore, is that the provisions of the Limitation Act would not apply in such a situation. 5. The submissions advanced by learned counsel for the appellant and the learned Authorized Representative for the Department have been considered. 6. The relevant portion of section 128 of the Customs Act, which deals with Appeals to Commissioner (Appeals), is reproduced below: 128 Appeals to Commissioner (Appeals) (1) Any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian 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 appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommr. of Cus., C. Ex. S.T., Jabalpur 2020 (35) G.S.T.L. 193 (Tri.-Del.) , in which the provisions of section 85 (3A) of the Finance Act 1994 relating to appeals to the Commissioner of Central Excise (Appeals) came up for consideration, after placing reliance upon the decision of the Supreme Court in Singh Enterprises observed that the discretion of the Commissioner to condone the delay is circumscribed by the conditions set out in the proviso and any delay beyond that period cannot be condoned. The relevant portion of the decision is reproduced below: 7. In order to appreciate the contentions advanced by the parties it would be appropriate to reproduce Section 85(3A) of the Finance Act which is as follows : 85. Appeals to the Commissioner of Central Excise (Appeals). - (3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to Service Tax, interest or penalty under this Chapter: PROVIDED that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of receipt, i.e., one day beyond the condonable period of 30 days and, hence, the same could not have been condoned. Similar view has been expressed by the revisional authority. (emphasis supplied) 12. The decision of the Supreme Court in Collector, Land Acquisition would not be of any help to the appellant. The Supreme Court, in the context of section 5 of the Limitation Act, explained sufficient cause . This decision would be helpful in only considering whether there was sufficient cause‟ to explain the delay beyond sixty days and up to the expiry of period of thirty days. As noted above, section 5 of the Limitation Act would not be applicable for condoning the delay beyond ninety days, in view of the aforesaid decision of the Supreme Court Singh Enterprises. 13. The Madras High Court in Kothari Sugars relied upon the aforesaid decision of the Supreme Court in Collector, Land Acquisition. This decision would, therefore, also not help the appellant. 14. Learned counsel for the appellant also placed reliance on the decision of a learned Member of the Tribunal in Jagdish Ispat. The learned Member observed that even though the Commissioner (Appeals) committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prayer for condonation can be accepted is statutorily provided‟. Section 35B of the Central Excise Act 1944, on which reliance has been placed in the aforesaid decision by the learned Member deals with Appeals to the Appellate Tribunal. It is true that section 35B does not contain a provision similar to section 35, wherein it is provided that an appeal has to be filed within 60 days from the date of the communication of the order but the Commissioner (Appeals) may, if he is satisfied that the appellant is provided by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of sixty days. Section 35 of the Excise Act would apply to A 17. ppeals before the Commissioner (Appeals), whereas section 35B would apply to Appeals before the Appellate Tribunal. Power under section 35B dealing with Appeals to the Appellate Tribunal cannot enable the Appellate Tribunal to condone any delay in filing the appeal before the Commissioner (Appeals) beyond the extended period of thirty days, after the expiry of the normal period of sixty days. 18. The Supreme Court in Singh Enterprises categorically held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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