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TMI Blog2023 (3) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the aforesaid period of two months, he has the jurisdiction to allow it to be presented within a further period of one month. Thus, the total period, including the extended period to prefer an appeal under Section 85 of the Act, 1994, is three months. The provision of Section 35 of the Central Excise Act, 1944 which is parimateria with Section 85(3A) of the Finance Act, relating to appeals before Commissioner (Appeals) had come up for consideration before the Hon ble Supreme Court in the matter of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [ 2007 (12) TMI 11 - SUPREME COURT ]. The said Section 35 of the Central Excise Act, 1944 provides that any person aggrieved by any decision or order passed under the Act, 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 period of thirty days. The appellate authority can entertain the appeal by condoning the delay o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Finance Act, 1994? 3. The facts leading to the filing of the instant appeal are stated in brief as follows. The appellant filed refund claim under Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 27/2012-CE(NT) dated 18.6.2012 which were rejected by the adjudicating authority and on appeal filed by the appellant, the refunds were allowed by the Director General of Performance Management vide Order-in-Appeal dated 21.5.2018 . Thereafter the adjudicating authority vide order dated 6.12.2018 sanctioned the refund of Rs.70,71,607/-. Since the said authority did not grant any interest on refund therefore the appellant challenged the said order dated 6.12.2018 (served upon the appellant on 13.12.2018) by way of appeal before the learned Commissioner (Appeals) on 11.4.2019. Admittedly the appeal was filed after lapse of 58 days from the prescribed statutory time limit of two months and therefore the learned Commissioner dismissed the same on the ground of limitation. 4. Learned counsel for the appellant submits that this Tribunal has power to condone the delay. He further submits that there was sufficient cause for not filing the appeal within the statutory prescribed per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 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. The aforesaid provision prescribes that an appeal before the Commissioner can be presented within two months from the date of receipt of the Order of the adjudicating authority. The proviso thereto unequivocally lays down that in case of delay in presenting the appeal, the discretion of the Commissioner (Appeals) in considering application for condonation of delay is restricted to one month only. If the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, he has the jurisdiction to allow it to be presented within a further period of one month. Thus, the total period, including the extended period to prefer an appeal under Section 85 of the Act, 1994, is three months. The provision of Section 35 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission; (2010) 5 SCC 23 has laid down that Section 5 of the Limitation Act, 1963 has no application where the Legislature has prescribed stipulated outer limit restricting discretion to condone the delay. The relevant paragraph of the said decision is reproduced as under:- 16. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory. Therefore the application of Limitation Act has been ruled out by the Hon ble Supreme Court. So far as the decision of the Tribunal in the matter of Yapp India (supra) is concerned, this Tribunal in the matter of Diamond Construction vs. Commr. of Cus., C.Ex. S.T., Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion activities in absence of GST registration. Resultantly, his right to livelihood would be effected. Since his statutory appeal suffered dismissal on technical ground, we cannot allow the situation to continue. We find that, in the facts and circumstances of this case it would be appropriate to exercise our jurisdiction under Art.226 of the Constitution of India. xxx xxx xxx 8. In the matter of Albert Company Pvt. Ltd. vs. CST, Chennai; 2015(37) STR 187 (Mad.), as placed on record on behalf of Revenue, it has been specifically held by the Hon ble High Court, while interpreting Section 85(3) ibid, that the Tribunal has no power or authority to extend the period of limitation prescribed by the statute for entertaining the appeal. Similar issue, regarding the condonation of delay beyond the period specified in the statute in filing appeal, came up for consideration before the Full Bench of the Hon ble High Court of Punjab Haryana in the matter of State of Haryana v. Hindustan Machine Tools Ltd.2015 (328) E.L.T. 27(P H), wherein it has been held that wherever the extent of condonable period is specifically prescribed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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