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TMI Blog2019 (11) TMI 1680X X X X Extracts X X X X X X X X Extracts X X X X ..... ugust, 2017 intimated the Managing Director of M/s. Hindustan Controls and Equipment Pvt. Ltd. - (Corporate Debtor) that the 1st Appellant has informed that the Corporate Debtor is not clearing the amount and, therefore, requested the Corporate Debtor to assign reasons for non-payment of the amount and to file reply so as to take further course of action. There is no arbitration proceeding pending or initiated under the Arbitration and Conciliation Act, 1996. However, the fact discloses that there was a dispute relating to payment of the dues and the letter issued by the Calcutta Electric Traders Association suggests that there is pre-existence dispute - the Adjudicating Authority has rightly held that there being pre-existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and Others (2008) 3 SCC 70 , wherein the Hon ble Supreme Court taking into consideration the provisions of Section 35 of the Central Excise Act, 1944 observed: 6. At this juncture, it is relevant to take note of Section 35 of the Act which reads as follows: 35. Appeals to Commissioner (Appeals).-(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays 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 up to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the manner in which the National Company Law Tribunal (Adjudicating Authority) is to pass order. Sub-section (3) of Section 420 mandates the Tribunal to send a copy of every order to all the parties concerned, which reads as follows: 420. Orders of Tribunal.- (1) The Tribunal may, after giving the parties to any proceeding before it, a reasonable opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Tribunal may, at any time within two years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment, if the mistake is brought to its notice by the parties: Provided that no such amendment shall be made in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days in preferring the appeal and as such being satisfied, we condone the delay. 13. We may observe that we have not taken into consideration the decision of the Hon ble Supreme Court in Singh Enterprises v. Commissioner of Central Excise (Supra) as in the Central Excise Act, 1944 there is no provision of communicating certified copy and there is no mandate to provide free certified copy to the concerned person and, therefore, we have noticed that the aforesaid decision is not applicable in the present case. 14. So far as maintainability of Section 9 is concerned, we find that the application under Section 9 was not maintainable for the reasons mentioned hereunder. 15. A Memorandum of Understanding was reached between M/s. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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