AI Drafter 
TaxTMI 
TaxTMI 
2015 (3) TMI 1180
X X X X Extracts X X X X
X X X X Extracts X X X X
.....11.2014, the Commissioner of Appeals II, while allowing the rest of the appeal, rejected the appeal in respect of the Bill of entry No.5363496, dated 1.5.2014, on the ground that it has been filed beyond the time limit prescribed under Section 128 of the Customs Act, 1962 and it is time barred. 4. The petitioner has filed an application for condoning the delay of 18 days in filing the appeal in terms of Provisions of Section 128 (1) of the Customs Act, 1962 (in short, 'the Act'). The reasons lead to filing the appeal belatedly are, that the petitioner was under a dilemma as to whether an appeal is to be filed against the Bill of Entry or a refund application is enough for the differential amount and that they were under the bona fide impression that inasmuch as the previous consignments were under provisional basis, the present Bill of Entry also would be re-assessed at the time of final assessment of the earlier Bill of entries and that they consulted outside legal experts which took considerable time. 5. The learned counsel appearing for the petitioner would submit that the petitioner has a good case on merits and the authority, without considering the sufficient sa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fere in extraordinary jurisdiction in the instant case when there is no error in the impugned order. He further contended that the Customs Act is a self-contained Act and a code by itself and in the absence of any specific provision enabling this Court to exercise its power to condone the delay, it has no power to condone the delay. In support of his contentions, he relied upon the decisions of the Hon'ble Supreme Court, reported in "Chahatisgarh State Electricity Board versus Central Electricity Regulatory Commission and others" (2010) 5 SCC 23 and "Commissioner of Customs and Central Excise versus Hongo India Private Limited and another" (2009) 5 SCC 791. Therefore, he prayed for dismissal of the writ petition. 7. Heard the learned counsel appearing on either side and perused the materials placed on record. 8. Section 128 of the Customs Act reads as under: "128. Appeals to Commissioner (Appeals)- (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within "within sixty days" from the date of the communication to him of such decision or o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of other four items, wherein, the appeals were filed though after expiry of 60 days, however, since they were within the condonable period of 90 days. The present appeal was beyond the statutory period of 90 days and the authority has rightly rejected the same, since he cannot be expected to exercise his discretionary power beyond the permissible period that was prescribed by the statute. 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 made to a decision reported in "Singh Enterprises versus CCE" (2008) 3 SCC 70, wherein, the Hon'ble Supreme Court, interpreted Section 35 of the Central Excise Act, 1944 which is pari material to Section 128(1) of the Customs Act and observed as under in para 8: "8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Li....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In 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-se....