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TMI Blog2022 (4) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of section 35 of the Central Excise Act, 1944, which are para materia to the provisions of section 128 of the Customs Act and observed that the delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days, which is the normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and the High Court were justified in holding that there was no power to condone the delay after the expiry of 30 days period and that the provisions of the Limitation Act would not be applicable. A Division Bench of the Tribunal in M/S DIAMOND CONSTRUCTION, M/S SAI SHREE CONSTRUCTION VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE SERVICE TAX [ 2019 (2) TMI 1822 - CESTAT NEW DELHI] , 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 circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that concerns limitation issue is ground no. 7. It is reproduced below: 7. Because the Learned Commissioner (Appeals) has failed to take into account the submission of the appellant that there is no delay in filing of the appeal before the Commissioner (Appeals) as the same was filed within the stipulated time frame. Therefore the impugned order is bad in law and needs to be set aside on this very ground itself. 6. To appreciate the issue, it would be appropriate to reproduce the relevant portion of section 128 of the Customs Act which deals with Appeals to Commissioner (Appeals). It is reproduced below: 128 Appeals to Commissioner (Appeals) (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner or Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: PROVIDED that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Learned counsel for the appellant has emphasized on certain decisions, more particularly, I.T.C. s case (supra) to contend that the High Court and this Court in appropriate cases condoned the delay on su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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