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TMI Blog2024 (9) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... f limitation expired as prescribed u/s. 85(3) ibid neither the Tribunal nor the first appellate authority has power to condone the delay in filing the appeal beyond the statutory period.' Thus, it is not open to the Tribunal to condone such delay as could not be condoned by the first appellate authority. There is no merit in the appeal which is dismissed. - HON BLE MR C J MATHEW , MEMBER ( TECHNICAL ) And HON BLE MR AJAY SHARMA , MEMBER ( JUDICIAL ) None for the appellant Shri Xavier Mascarenhas , Superintendent ( AR ) for the respondent ORDER PER: C J MATHEW M/s Base Corporation Ltd is before us with challenge to order [ order-in-appeal no. PUN-EXCUS-003-APP-116-14-15 dated 9th December 2014 ] of Commissioner of Service Tax (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise (Appeals), Mumbai. 4. On perusal of the said order, we find that, taking note of the decision in re Singh Enterprises, it was held in re Tnet Messaging Services P Ltd that 6. .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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertain the appeal by condoning the delay only upto 30 days beyond the normal period for preferring the appeal, which is 60 days. The Commissioner (Appeals) herein was, therefore, justified in dismissing the appeal on the ground of limitation in view of the aforesaid decision. I cannot lose sight of the legal position that as per Article 141 of the Constitution of the India the law declared by the Hon ble Supreme Court is law of the land and is binding on all Courts/Tribunals and Authorities. Therefore in view of the aforesaid decision of the Hon ble Supreme Court it is clear that the Commissioner has no power to condone the delay beyond the period prescribed by the statute and the appeal has been rightly dismissed by the learned Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter of Diamond Construction vs. Commr. of Cus., C.Ex. S.T., Jabalpur; 2020 (35) GSTL 193 (Tri.-Del.) has held that the decision in Yapp India (supra) is contrary to the law laid down by the Hon ble Supreme Court in Singh Enterprises (supra). Interpreting the similar provision i.e. Section 85(3A) ibid, the Tribunal in the matter of Diamond Construction (supra) while dismissing the appeal filed by the assessee therein has held that the Commissioner (Appeals) did not commit any illegality in dismissing the appeal. I have also gone through the decisions of the Hon ble High Courts in the matter of Panoli Intermediate (supra) and Electronics Corporation of India Ltd. (supra) as cited by learned counsel. In my view these decisions will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pandemic and his health barriers, would be put to great hardship for want of GST registration. The petitioner who is small scale entrepreneur cannot carry on production 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do so for condoning the delay. Exercise of extraordinary writ jurisdiction under Article 226/227 of the Constitution of India would amount to doing violence to the statutory provision and rendering the same otiose. In other words, the legislative intent is clear that the Parliament never intended that delay beyond specified period in filing the appeal could be condoned. It is not for the High Court to re-write the statute in the garb of exercise of its jurisdiction under Articles 226/227 of the Constitution. The view which has been expressed by us herein above, is supported by various judicial precedents. 9. In view of the above, it is well settled that once the period of limitation expired as prescribed u/s. 85(3) ibid neither the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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