TaxTMI 
TaxTMI 
2015 (3) TMI 627
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....ended period of limitation permissible in the statute. 3. Appellant is a company, registered under the Companies Act, 1956, engaged in manufacture of Hot re-rolled products viz. angles, shapes and section of iron and non- alloy steel, falling under Chapter 72 of Central Excise Tarrif Act, 1985 (hereinafter referred as "Act, 1985"). Appellant used "Rough Forged" and 'Rail' in rolling mill for producing hot re-rolled products. It availed CENVAT credit on these two items, claiming that same are classified under Chapter 72071910 and 73021010 respectively of Act, 1985 as "Capital Goods". 4. Appellant closed manufacturing activities in January, 2009. It is alleged that intimation to this effect was furnished to Assistant Commissioner, Central Excise Division-I, Allahabad vide letter dated 31.01.2009. Appellant also claimed to have surrendered license and intimated the bank about closure of unit vide letter dated 27.01.2009 5. A show cause notice dated 29.10.2010, was issued by Joint Commissioner, Central Excise and Service Tax, Allahabad, stating therein that during October, 2006 to February, 2007, appellant has wrongly availed/utilized CENVAT credit on "Rough Forged" and '....
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....nce power for condonation of delay is not vested in him and appeal being barred by limitation had to be dismissed. 8. Appellant assailed aforesaid order of Commissioner (Appeal) before Tribunal, which has upheld aforesaid order on the ground that Commissioner (A) do not possess power for condonation of delay beyond maximum period prescribed in the statute, hence appeal was rightly rejected as barred by limitation. 9. Though, learned counsel for appellant has chosen to formulate several substantial questions of law, but, he could not dispute that since Tribunal has not considered the matter on merits, the only question which has arisen in this appeal is "Whether dismissal of appeal by Commissioner (A) on the ground of limitation was justified or not?" Thus the questions relating to merits, have not arisen in this appeal. We accordingly formulate the following substantial questions of law which have arisen in this appeal :- 1. Whether Commissioner has rightly held that condonation of delay is not permissible beyond period provided in statute and therefore, delay cannot be condoned and appeal has to be dismissed as barred by limitation? 2. Whether Tribunal has erred in law in hold....
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....idered before Apex Court. Therein appeal of assessee was filed after delay of 21 months' from the date of communication of order under appeal. Commissioner, rejected the same on the ground that it was beyond period of 30 days from the date of expiry of period of limitation of 60 days prescribed for filing appeal, therefore, delay was beyond his authority of condonation. This order was challenged in writ petition under Article 226 of Constitution of India, but the same was dismissed, holding that there was no power of condonation of delay beyond prescribed period. In appeal before Apex Court, assessee contended that High Court in writ jurisdiction under Article 226 could have condoned delay, since, constitutional power is unblemished by any statutory provision. Further relying on an earlier decision of Apex Court in I.T.C. Ltd. Vs. Union of India [1988 (8) SCC 610], it was argued that High Court had power to condone delay. Court held in paragraph no. 4 of judgment that Section 35, as it stands after its amendment by Act, 2001, w.e.f. 11th May, 2001, prescribes period of limitation of 60 days and further period of 30 days' delay which can be condoned. Beyond that appellate au....
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....tatutes having similar provisions, was negatived in Vimal Organics Ltd. Vs. State of Uttar Pradesh [2008 (3)ADJ 91] by this Court. It considered Section 13 of Water (Prevention and Control of Pollution) Cess Act, 1977 (hereinafter referred to as 'Act, 1977'), and Rule 9 of Water (Prevention and Control of Pollution) Cess Rules, 1978 (hereinafter referred to as 'Rules, 1978'), where period of limitation for filing appeal was 30 days' which could be condoned up to 45 days. Appeals filed beyond that period were rejected on the ground that there was no power of condonation of delay beyond maximum period prescribed in the statute. Therein an argument was advanced that delay could have been condoned as period of limitation is procedural law and secondly that in writ jurisdiction, Court can condone delay. Both these arguments were negatived by this Court. This Court followed an earlier decision in Mahavir Sahkari Avas Samiti Ltd. Vs. State of U.P. and Others [2007 (2) AWC 1162], where this Court has said "the Court does not have the power to extend the period of limitation provided under the Statute". 19. In Vimal Organics (supra) this Court said :- ".......In respec....
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....sed to the extent Statute has granted. While a time limit has been fixed for preferring the Appeal, upon expiry of that period, the right to prefer Appeal stands extinguished. If the Appellate Authority has been authorized to condone delay of a limited period as prescribed, the same itself prescribes that he has no authority to condone delay beyond the limit so prescribed. However, the right exercised by a citizen under Article 226 of the Constitution of India is not a statutory right, but is a constitutional right. If the Constitution has limited that right, of course, then the right has to be exercised within that limit. The fact remains that the Constitution, while conferring the right under Article 226 of the Constitution, did not confer such right by any limitation whatsoever. In those circumstances, there cannot be a contention that the writ petition is not maintainable because it is belated. If the action complained of its nonest from the day one, the same can be challenged even after 100 years. The question is, whether the action complained of in the writ petition is nonest or not? The Central Excise Act provides the mechanism of recovery of excise duties. It permits recove....