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TMI Blog2022 (8) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... d that could have been condoned by the Commissioner (Appeals) in terms of Section 128 of the Customs Act. 2.1 I have head Shri R.K. Gupta, Director of the appellant and Shri S.K. Hatangadi, Assistant Commissioner, Authorised Representative for the Revenue. 3.1 I have considered the impugned order along with the submissions made in the appeal and during the course of argument. 3.2 While dismissing the appeal, the Commissioner (Appeals) has observed as follows:- "4. I have gone through the facts and submissions of the case and find that in the instance, the appellant filed the appeal on 14.08.2019 against the order-in-original passed on 31.03.2017 (appeal filed after approx 866 days against the said passed O-in- 0), which clearly indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance - Such requirement would be mandatory. [para 28] Interpretation of statute-Statutory prescription-Particular thing prescribed to be done in a particular manner-That thing cannot be allowed to be done in any other way. [para 28] Interpretation of statute - Statute penal in character-It has to be strictly construed and followed [para 28] Same view was taken in case of Eagle Flask Industries Limited vs CCE, Pune 2004 (171) E.LT. 296 (SC) that to claim benefit if condition like filing of declaration and giving of an undertaking as specified, which are not an empty formality or mere procedural requirement are not complied with, it can be denied. 6. Considering these facts and relying on the various judicial pronouncement, as discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of 30 days i.e. beyond 90 and hence not condonable under Section 128 of the Customs Act, 1962. As the impugned appeal is not maintainable on the time period prescribed for appeal, I have not gone into the of the appeals." 3.3 From the C.A.-1 Form filed by the appellant, it is evident that the appellant had at serial No.4 indicated as follows:- "(4) Date of communication of the decision or order appealed against to the appellant: Date of order 31.03.2017, received in the end of May, 2017." 3.4 From the declaration made by the appellant of C.A.-1 Form, it is quite evident that the appellant had received the order in the end of May 2017. Accordingly the appeal should have been filed within 90 days of the date of receipt of the order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s "sixty days" and "thirty days" have been substituted for "within three months" and "three months" by Act 14 of 2001, with effect from 11-5-2001. 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period. From the application for condonation of delay, it appears that the appellant has categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business there was delay does not stand to be reason. I.T.C.'s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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