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TMI Blog2023 (3) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. It is, therefore, clear that an appeal can be filed within two months from the date of communication of the order but if the Appeal is filed after two months but within one month after the expiry of two months, the Commissioner (Appeals) may condone the delay in filing the Appeal if he is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within two months. It, therefore, implies that if the Appeal is filed after one month after the expiry of the initial period of two months, the delay cannot be condoned. This iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ORDER This appeal has been filed to assail the order dated 10.02.2017 passed by the Commissioner (Appeals) dismissing the appeal for the reason that it had been filed beyond the period of limitation prescribed under section 85 of the Finance Act, 1994 [the Finance Act]. 2. Case has been called out but no one has appeared on behalf of the appellant even though the notice dated 08.02.2023 sent to the appellant and the learned Chartered Accountant appearing for the appellant was served upon them on 13.02.2023 and 15.02.2023 respectively. The appeal is, accordingly, being decided on merits after perusing the records and after hearing Shri Harshvardhan, learned authorized representative appearing for the Department. 2.1. In or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order and relied upon the decision of the Supreme Court in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur [2018 (221) E.L.T. 163 (S.C.)]. 6. The grounds raised in the appeal and the submission advanced by the learned authorized representative appearing for the Department have been considered. 7. On a plain reading of the aforesaid provisions of section 85(3A) of the Finance Act, it is clear that any person aggrieved by any decision or order passed by the adjudicating authority may appeal to the Commissioner (Appeals) within two months from the date of receipt of the decisions or orders. The proviso, however, stipulates that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 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 Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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