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TMI Blog2025 (4) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 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 4.2 The above statutory provisions restrict any appeal to be filed within a period of two months from the date of receipt of the decision or order of the Adjudicating Authority and the proviso to Section 85(3A) of the Act above empowers the Commissioner of Central Excise (Appeals), to allow the appeal to be filed within a further period of one month, if he is satisfied that the appellant was prevented by sufficient cause for presenting the appeal within the aforesaid period of two month. 4.3 I find that in the instant case, the appellant has requested for condonation of delay. Since, the Commissioner (Appeals) can condone the delay of one month only and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative appearing for the revenue. 2.2 Learned Counsel submits that he has a strong case on merits. On the issue of limitation he would rely upon the following decisions wherein after noting the decision of the Hon'ble Supreme Court in the case of Singh Enterprises, courts and tribunal have allowed remanded the matter back to the Commissioner (Appeal) for decision on merits: * Raj Construction Co [2021 (55) GSTL 156 (T-Del)] * Citrix Systems Private Limited [Final Order No 21129/2016 dated 08.11.2016 in ST/20390/2015-SM] * Jalpaiguri Central Engineers Cooperative Society Limited [Order dated 06.03.2024 in WPA No 346 of 2024 Calcutta High Court] * Central Industrial Security Force [2018 (14) GSTL 198 (ALL)] * M Thiagarajan [2024 (6) TMI 1117 Madras High Court] 2.3 Authorized representative re-iterated the findings recorded in the impugned order. 3.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 3.2 I find that the issue involved in the present appeal is with respect of condonation of delay in filing the appeal before the Commissioner (Appeal). In the present case the appeal has been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) 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. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner." 7. It is to be noted that the periods "sixty days" and "thirty days" have been substituted for "within three months" and "three months" by Act 14 of 2001, with effect from 11-5-2001. 8. The Commissioner 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs." 3.3 Appellant has relied upon decisions of various High Court, namely Hon'ble Madras High Court, Hon'ble Calcutta High Court and Hon'ble Allahabad High Court. From the perusal of these order it is evident that these orders have been rendered by the Hon'ble High Court in the writ petitions filed writ petitions wherein High Court have been granted power to decide the issues beyond the statutory provisions, and none of the order has been rendered in an appellate proceedings as per the statutory provisions and hence none of these order lay down the law on the statutory provisions contained in the Finance Act, 1994. Hon'ble Supreme Court has in cased of singh Enterprises in para 8, clearly observed that Commissioner (Appeal) and Tribunal are creature of statute and hence bound by the [provisions of the statute and period of limitations as provided by the statute are binding upon them. In case of Universal Paper Mills Ltd [2014 (304) E.L.T. 79 (Cal.)] Hon'ble Calcutta High Court observed as follows: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears that the Commissioner (Appeals) decided the appeal ex parte. The appellants preferred an appeal to the Tribunal with a delay of nine months. The Tribunal has, by the impugned judgment, dismissed the appeal on the ground of delay. In our view, this is a fit case which should be heard by the Commissioner (Appeals) on merits. We, thus, set aside the order of the Tribunal as well as of the Commissioner (Appeals) and remit the matter back to the Commissioner (Appeals) to decide on merits. The appeal is disposed of......" 28. The order has obviously been passed by the Supreme Court in the special facts and circumstances before it and does not lay down any binding proposition of law. 29. In Coronation Spinning India (Supra), the Supreme Court, in exercise of its power under Article 142, to do complete justice between the parties, condoned delay which was of 86 days only. In Jaya Engineering Works Ltd. (supra), the delay that had not satisfactorily been explained was only of 38 days. 30. In Affiliated Computer Services (I) Pvt. Ltd. (supra), the delay was only of 42 days and the Court was of the view that the learned Tribunal had taken a narrow view of the matter and the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision. 3.5 In case of Raj Construction Co. relied upon by the appellant counsel the issue was not where the appeal has been filed between the period of delay which could have been condoned by the Commissioner. The dispute was in respect of the date of receipt of the order of adjudicating authority. Commissioner appeal has without recording any reason for rejecting the date when it was claimed by the assessee to have received the order, decided the case against him on the basis of presumption. However after taking note of the evidence of the receipt of the order, tribunal concluded that delay in filing the appeal was within period prescribed for condo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to sub-section (3) of Section 85 of the Finance Act. 10. Learned Counsel for the appellant urged that instead of remitting the matter to the Commissioner (Appeals) for deciding whether sufficient cause for condoning the delay existed, the Bench may decide this matter as the dispute is of the year 2009. 11. In the facts of the case, we consider it appropriate to examine the delay condonation application filed by the appellant before the Commissioner (Appeals) with the appeal. 12. The averments made in the said application have been reproduced in the third paragraph of this order. It has been stated that initially the appellant was advised to file a representation before the Chief Commissioner against the order dated 26-10-2009, but subsequently, the Counsel who was contacted, after the Range Officer informed the appellant that no appeal had been filed before the Commissioner (Appeals), advised that an appeal was required to be filed before the Commissioner (Appeals), that an appeal was filed on 13-5-2010. 13. We are satisfied from the averments made in the delay condonation application that the appellant was prevented by sufficient cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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