AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 690
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice was received on 17.08.2016 during the absence of commercial head who was attending audit at Chennai plant and the person in charge of Excise matter left his job for which it could not go to the notice of the appellant to prefer appeal within the stipulated time and it was filed on 03.01.2017 immediately upon their knowledge. Citing several case laws including the one passed by this Tribunal in Supreme Fibre Glass Inc. reported in 1995 (79) ELT 167 and Saral Wire Craft Pvt. Ltd. 2017 (15) STR 237 (SC), the ld. Counsel for the appellant Ms. Mithila Shelar argued that Commissioner (Appeals) order is not sustainable in law. Otherwise also justifiable delay can be done by this Tribunal, as submitted by her. 2. Heard the ld. AR Shri Dilip Sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... fresh adjudication by the Commissioner (Appeals). Hence the Order - 4. The delay of 79 days is condoned and the order passed by the Commissioner (Appeals) is set aside. The matter is remanded back to the Commissioner (Appeals) for fresh adjudication. (Pronounced in Court on 21.06.2018) SD Dr. Suvendu Kumar Pati Member (Judicial) Dated: 10.07.2018 1. Rectification by way of addendum has been necessitated to give clarity to the Order passed above since Tribunals are under legal obligation to pass speaking and reasoned orders to ensure that decision is reached according to law and not emerged as a result of caprice, whims and fancies as ratio contained in Singh Enterprises judgment referred above has not been brought on record. It h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oner (Appeals). 4. Perused the judgment in detail and it is found that the Division bench of the Hon'ble High Court, before whom writ petition was preferred by the present appellant against the order of Commissioner (Appeals), while refusing condonation of delay and dismissing the appeal had given their findings to the effect that the Commissioner had no power of condonation beyond the statutory prescribed period and the argument of the Appellant before the Hon'ble High Court that in exercise of power conferred under Section 226 of Constitution of the India it can do so, was held by the Hon'ble High Court to be not sustainable. The said order was apparently passed because Writ of Certiorari, which is normally issued in cases wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tset it has to be pointed out that nowhere in the said Singh Enterprises judgment, jurisdiction of this Tribunal has been questioned as against the order of Commissioner (Appeals). Writ was preferred in the jurisdictional High Court. The only reference regarding jurisdiction of the Tribunal has been found in para 8 wherein it has been mentioned that the Commissioner of central excise as also the Tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute and the period upto which the prayer for condonation is statutorily provided. 7. It is needless to mention here that such condonable period of 30 days beyond the statutory period of appeal, which is given to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....peal in condoning delay, though for filling cross objection, it is having similar power to that of the Commissioner (Appeals) to extend time for such filling of cross objection. With reference to Section 128 of the Customs Act it has been held by the Hon'ble Supreme Court in Consolidated Engineering Case [(2008) 7 SCC 169] that there is vital distinction between extending time and condoning delay and in the said case as well as in a recently decided case i.e. M.P. Steel Corporation Vs. Commissioner of Central Excise (DOJ 23.04.2015), though application of Limitation Act to the Tribunal was refused, it has been held that the principle of Limitation Act can be applied. It was held that Section 14 of the Limitation Act which is a principle bas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ations. 11. Now coming to the jurisdiction of this Tribunal to condone the delay at this end, it is also imperative to have a look at the provision contained in Section 35C clause 1 which reads as follows:- "The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such order thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be after taking additional evidence, if necessary". 12. From the bare text of Section 35C it can very well be said that without m....