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TMI Blog2024 (2) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [ 2007 (12) TMI 11 - SUPREME COURT] held Plea that , because of lack of experience in business there was delay, is not a adequate reason. Thus, the Commissioner (Appeals) was not competent to condone the delay beyond 30 days over 90 days. In the present case the order-in-original is dated 14.02.2014. Review order is dated 20.05.2014. Thus the review order is not within 3 months as is required under Section 84 of the Act. The said order admittedly was received at Divisional office, Gwalior on 21.05.2014 but the appeal admittedly was filed on 07.07.2014 i.e. much beyond 30 days of receipt of review order and beyond 90+30 days of the order in original. It is already observed above that Commissioner (Appeals) has no statutory power to condone delay in filing appeal before him which is beyond 90+30 days of the communication of order in original. Appeal allowed. - DR. RACHNA GUPTA, MEMBER (JUDICIAL) AND MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Ms. Kainaat, Advocate for the Appellant. Ms. Jaya Kumari, Authorized Representative for the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent to entertain the appeal. Order is liable to be set aside on this ground itself. Appeal is accordingly, prayed to be allowed. 5. While rebutting the submission, learned Departmental Representative has mentioned that though the present appellant had raised the objection about competence of Commissioner (Appeals) for entertaining the impugned appeal, in their cross-objections filed before Commissioner (Appeals), but Commissioner (Appeals) has still proceeded to adjudicate which is sufficient to reveal that the delay that occurred in filing the appeal before Commissioner (Appeals) was being duly condoned by him. Hence the same cannot be a ground for setting aside the order under challenge. While submitting on merit, it is mentioned that there is no dispute about the impugned activity of the appellant to be a taxable service hence the demand for the entire normal period in both the show cause notices has to be confirmed. Commissioner (Appeals) has committed no error while holding that there was suppression on part of the appellant as they were not disclosing their tax liability. Hence the demand for the entire extended period is also been rightly confirmed. The order is, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Central Excise (Appeals), as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Chapter regarding appeals shall apply to such application. Explanation.-For the removal of doubts, it is hereby declared that any order passed by an adjudicating officer subordinate to the Principal Commissioner of Central Excise or Commissioner of Central Excise immediately before the commencement of clause (C) of section 113 of the Finance (No. 2) Act, 2009, shall continue to be dealt with by the Principal Commissioner of Central Excise or Commissioner of Central Excise as if this section had not been substituted. SECTION 85. Appeals to the Commissioner of Central Excise (Appeals). (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers the Commissioner (Appeals) to condone a period of 30 days (one month) after the expiry of 90 days (3 months). The proviso makes it clear that the Commissioner has no competence to condone the delay beyond 30 days over 90 days. The Hon ble Supreme Court in the case of Singh Enterprises Vs. CCE 2008 (221) ELT 163 (SC) held as under: 3 . The Division Bench noted that since the Commissioner had no power of condonation beyond the statutorily prescribed period, therefore, the writ petition was without merit. Before the High Court reliance was placed on a decision of this Court in I.T.C. Ltd. v. Union of India - [1998 (8) SCC 610] to contend that the High Court had the power to condone the delay. This stand was not accepted by the High Court. 4 . In support of the appeal, learned counsel for the appellant submitted that even if it is conceded for the sake of argument that the Commissioner had no power to condone the delay, yet the High Court in exercise of power conferred under Article 226 of the Constitution of India, 1950 (in short the Constitution ) can condone the delay. It is stated that the power in this regard is untrammeled by any statutory provision. 5 . Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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