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TMI Blog2009 (4) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. This Appeal has been filed under Section 36G of the Central Excise Act, 1944 ('Act' for short) against the Final Order of the Customs Excise and Service Tax Appellate Tribunal passed on 2.12.2005. 3. Learned counsel for the Respondent has raised an objection at the very threshold to the effect that the Appeal is liable to be dismissed, having been filed after the expiry of the period set-down in Section 35G. In support of his submission that the Appeal must automatically, inevitably and inexorably be dismissed, learned counsel for the Respondent has relied on Commissioner of Customs, Central Excise, Noida vs. Punjab Fibres Ltd., Noida, (2008) 3 SCC 73 and Commissioner of Customs and Central Excise vs. Hongo India (P) Ltd., MANU/SC/04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. (2) The Commissioner of Central Excise or the other party applying to the High Court under sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred. (3) On receipt of notice that an application has been made under sub-section(1), the person against whom such application has been made, may, notwithstanding that he may not have filed such application, file, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led within sixty days from the date of the communication of the decision; the proviso empowered the Commissioner(Appeals) to condone the delay if he was satisfied that the appellant had been prevented by sufficient cause from presenting the Appeal within the aforesaid period of sixty days, provided that the Appeal had been presented within a further period of thirty days. It had been opined that the Appeal was not maintainable if filed beyond ninety days, that is, 60 days+30 days. 7. It is Section 35H of the Act which was relevant provision even in Hongo India (P) Ltd., unlike Section 35G which is attracted in the Appeal before us. Learned counsel for the Respondent has relied on paragraph 7 of Hongo India (P) Ltd. which reads thus:- 7. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1989 SC 38, Sanjay Dutt vs. State through CBI, Bombay, (1994) 5 SCC 402, Director of Settlements, AP vs. M.R. Appa Rao, AIR 2002 SC 1598, Nathi Devi vs. Radha Devi Gupta, (2005) 2 SCC 271, State of Haryana vs. Ranbir, AIR 2006 SC 1796 and Oriental Insurance Co. Ltd. vs. Meena Varial, (2007) 5 SCC 428). 10. It appears apparent to us that this aspect whether or not Court possesses power to condone delay in presenting an Appeal in view of sub-section 3A of Order XLI of the Code of Civil Procedure, which is attracted by virtue of sub-section 9 of Section 35G as it stood at the relevant time requires consideration. This provision reads as follows:- 3A. Application for condonation of delay. - (1) When an appeal is presented after the expiry o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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