2015 (4) TMI 322

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....e period from July 2003 to September 2006, the petitioner preferred appeal before the Tribunal and the Tribunal granted stay directing the petitioner to pay Rs. 20 lakhs as pre-deposit. As against the said order, the petitioner obtained interim order dated 7.12.2007 in M.P.No.1 of 2007 in W.P.No.36541 of 2007 from this Court granting stay of pre-deposit and by final order dated 24.12.2012 in W.P.No.36541 of 2007 directed the Tribunal to dispose of the appeal without pre-deposit. The Additional Commissioner by order dated 26.1.2011 confirmed the demand of Rs. 97,11,679/- towards service tax, education cess and Secondary and Higher Education Cess covering the period from October 2007 to March 2010 and also confirmed the demand of interest by ....

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....e sixty days referred to above provided that he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the sixty days prescribed. However, on a plain reading of the proviso, it does appear that the Commissioner (Appeals) can exercise such power only within a "further period of thirty days". In other words, the appeal can be filed only up to 90 days from the date of communication of the decision or order appealed from. The first sixty days being the initial period and the further thirty days being at the discretion of the Commissioner (Appeals). ....... 10. As regards the issue whether the High Court has power to condone the delay after the expiry of 30 days period, a useful reference can be mad....

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.... days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period." (emphasis added) 11. The above said decision was followed by the Hon'ble Supreme Court in its subsequent decision reported in "Commissioner of Customs and Central Excise versus Hongo India Private Limited and another" (2009) 5 SCC 791, wherein, the question for dete....

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.... other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. 36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act. 37. In the light of the above disc....