TaxTMI 
TaxTMI 
2019 (3) TMI 20
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....n of the delay of 457 days in filing the said appeal. The Appellate Tribunal held that in view of the express language of Section 68-O of the NDPS Act, it had no power to condone the delay. The petitioner had also filed an application seeking direction from the Appellate Tribunal to permit it to approach this Court for seeking condonation of delay, however, that prayer was also rejected. 5. The principal question that falls for the consideration of this Court is whether the Appellate Tribunal can entertain an appeal from an order of a Competent Authority, which is filed after expiry of sixty days from the receipt of the order. This Court is also required to consider whether this Court can condone the delay beyond the said period in exercise of its powers under Article 226 of the Constitution of India. 6. Briefly stated, the aforesaid controversy arises in the following factual context:- 6.1 The investigating authorities of Narcotic Control Bureau had effected recoveries of psychotropic substances from certain persons, namely, Amit Kohli, Diwakar Gupta, Nafe Singh and Rajesh Sharma on 05.05.2008. The said persons were thereafter arrested on 06.05.2008, for alleged contraven....
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....hout any further observations. However, the petitioner claims that the Appellate Tribunal had observed that the delay in filing the appeal cannot be condoned by the Appellate Tribunal but the same can be done by this Court. 6.8 On 25.10.2018, the petitioner filed an application before the Appellate Tribunal, inter alia, praying that an order be passed enabling the petitioner to approach this Court for seeking condonation of delay in filing the appeal. The same was also rejected. Aggrieved by the same, the petitioner has filed the present petition. Reasons and Conclusion 7. At the outset, it will be relevant to refer to Sub-Section (1) of Section 68-O of the NDPS Act which reads as under:- "68-O. Appeals (1) Any person aggrieved by an order of the competent authority made under section 68F, section 68-I, sub-section (1) of section 68K or section 68L, may, within forty-five days from the date on which the order is served on him, prefer an appeal to the Appellate Tribunal: Provided that the Appellate Tribunal may entertain an appeal after the said period of forty-five days, but not after sixty days, from the date aforesaid if it is satisfied that the appellant was preve....
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....gh Court which is vested in him the moment he is convicted. Secondly, it was urged that if the appeal in the High Court was decided against the appellant, he would still have a right to move the Supreme Court under Art. 136 of the Constitution against conviction but that by reason of the appeal having been transferred to the Supreme Court, that right also has been taken away. In our opinion, there is no substance in this grievance. To begin with, an appeal being a creature of statute, an accused has no inherent right to appeal to a particular tribunal. The legislature may choose any tribunal for the purpose of giving a right of appeal." 13. In Ganga Bai v. Vijay Kumar and Ors. : 1974 (2) SCC 393, the Supreme Court observed as under:- "There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statu....
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....at the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 7. It is to be noted that the periods 'sixty day' and 'thirty days' have been substituted for 'within three months' and 'three months' by Act 14 of 2001, with effect from 11.5.2001. 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer 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 the '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 preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by suffi....
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....nstitution of India was available for condoning such delay which was beyond the stipulated period. In this regard the Court observed as under:- "To put it in a different way, the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is un-condonable and it cannot be condoned taking recourse to Article 142 of the Constitution." 19. In Union of India v. Popular Construction Co. : (2001) 8 SCC 470, the Supreme Court noted the express language of Section 34 of the Arbitration and Conciliation Act, 1996 and held that the usage of the words "but not thereafter" as used in the proviso to Sub-section (3) of Section 34 of the said Act, would bar an application of Section 5 of the Limitation Act, 1963 and, therefore, the Court could not entertain an application to set aside an arbitral award beyond the period as specified therein. 20. It would also be relevant to refer to the decision of the Division Bench of this Court in Amikna Bi Kaskar ....