2024 (3) TMI 1049 - AT - Customs

Appeal dismissed as time-barred after exceeding 90-day limit under section 128(1) Customs Act

CESTAT New Delhi dismissed an appeal challenging Commissioner (Appeals) order that rejected an appeal for being time-barred. The appellant filed appeal on ... Condonation of delay in filing appeal - time limitation - Power of Commissioner (Appeals) to condone the delay - appeal dismissed for the sole reason that not only was the appeal not filed within 60 days from the date of communication of the order to the appellant but was filed even beyond the extended period of 30 days, which period alone could have been condoned by the Commissioner (Appeals) - HELD THAT:- This issue was examined at length by the Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT]. Though the decision is in the context of section 35 of the Central Excise Act, 1944, but the provisions of section 128 of the Customs Act are pari materia with the provisions of section 35 of the Excise Act, as section 35 of the Central Excise Act also provides that an appeal can be filed before the Commissioner (Appeals) within 60 days from the date of communication of the decision or order, but the Commissioner (Appeals) can condone the delay of 30 days after the expiry of the period of 60 days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the stipulated period of 60 days. The Supreme Court held that as the period upto which the prayer for condonation can be accepted is statutorily provided, the contention that section 5 of the Limitation Act, 1963 could be invoked to condone further delay after the expiry of 30 days cannot be accepted. The Supreme Court also observed that the appellate authority had no power to allow the appeal to be presented beyond the period of 30 days as was clear from the provisions of section 35 of the Central Excise Act. The period of limitation for filing the appeal before the Commissioner (Appeals) has to begin from 30.12.2018, on which date the appellant received the order dated 14.12.2018 passed by the Joint Commissioner. Though the letter dated 21.01.2019 said to have been sent by the Joint Commissioner to the learned counsel for the appellant has not been brought on record by the appellant, but what has been stated by the learned counsel for the appellant is that the said letter informed the learned counsel that any communication from the appellant received after 14.12.2018, on which date the Joint Commissioner passed the order, could not have been considered in the impugned order. In any view of the matter, it is the order dated 14.12.2018 that was required to be assailed by the appellant before the Commissioner (Appeals) and indeed it was this order that was assailed. Exchange of communications between the learned counsel and the Joint Commissioner after the passing of the order cannot enure to the benefit of the appellant to claim that the period of limitation would commence from 22.02.2019, on which date the learned counsel for the appellant choose to file a reply to the letter dated 21.01.2019 sent by the Joint Commissioner - The appellant was clearly aware of the fact that it was the order dated 14.12.2018 that was required to be assailed before the Commissioner (Appeals) and this fact has also been stated by the appellant in the Memo of Appeal. Thus, in view of the undisputed position that the appeal was filed by the appellant before the Commissioner (Appeals) on 22.04.2019, beyond the period contemplated under section 128(1) of the Customs Act, the Commissioner (Appeals) committed no illegality in dismissing the appeal as the appeal was filed before the Commissioner (Appeals) not only beyond the period of 60 days from the date the appellant received the order passed by the Joint Commissioner on 30.12.2018, but even beyond the extended period of 30 days, which period alone could have been condoned by the Commissioner (Appeals). This appeal which has been filed to assail the order dated 09.01.2020 passed by the Commissioner (Appeals) is, therefore, without any merit. It is, accordingly, dismissed. Issues Involved:1. Whether the Commissioner (Appeals) had the power to condone any delay beyond the extended period of 30 days after the expiry of the initial period of 60 days.Summary of Judgment:Issue 1: Power of Commissioner (Appeals) to Condon Delay Beyond 30 DaysThe appeal sought to quash the order dated 29.01.2020 by the Commissioner (Appeals), Central Excise and GST, Jaipur, which dismissed the appellant's appeal against the order dated 14.12.2018 by the Joint Commissioner of Customs for being filed beyond the permissible time limit.The Commissioner (Appeals) noted that the order dated 14.12.2018 was received by the appellant on 30.12.2018, and the appeal was filed on 22.04.2019, beyond the 60-day limit and the additional 30-day condonable period as per Section 128 of the Customs Act, 1962.Sub-section (1) of Section 128 of the Customs Act allows an appeal to the Commissioner (Appeals) within 60 days from the date of communication of the order, with a further 30 days condonable delay if sufficient cause is shown. The appeal was filed beyond this extended period without any delay condonation application. The appellant argued that the limitation should start from 22.02.2019, the date of a reply to a letter from the Joint Commissioner.The Commissioner (Appeals) dismissed the appeal on the ground of limitation, stating that the appeal was filed beyond the prescribed time limit and beyond the condonable period.The Tribunal considered the Supreme Court's judgment in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur, which held that the appellate authority has no power to condone delay beyond the statutory period of 30 days after the initial 60 days.The Tribunal reiterated that the limitation period for filing the appeal starts from the date of communication of the order (30.12.2018) and not from any subsequent correspondence. The appeal was thus filed beyond the permissible period, and the Commissioner (Appeals) had no power to condone the delay beyond the statutory limit.The Tribunal dismissed the appeal, upholding the Commissioner (Appeals)'s decision, as the appeal was filed beyond the period contemplated under Section 128(1) of the Customs Act.