2017 (8) TMI 514

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....RG The present appeal is directed against the impugned order dated 8.12.2016 passed by the Commissioner (A) whereby the Commissioner (A) has dismissed the application seeking condonation of delay and consequently, the appeal was also dismissed as the delay was beyond the condonable power of the Commissioner (A). 2. Briefly the facts of the case are that the appellant& are engaged in the manufact....

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....s observed that as per Section 35(1) of Central excise Act, 1944, an appeal before the Commissioner (A) has to be presented within 60 days from the date of communication of the order and further, as per proviso to Section 35(1), the Appellate Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within 60 days from the date of receipt, can condon....

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....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 he '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 prefarred within three months from the date of communication to him of the decision or order. Howeve....

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.... 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." 2.1 Further, upon the decision rendered by Hon'ble Bombay High Court in the case of M/s. Flemingo (Duty free shop) Pvt. ....