TaxTMI 
TaxTMI 
2019 (7) TMI 504
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....lice, Hoshangabad, Madhya Pradesh, who heads of the Police administration of the district of Hoshangabad in the State of Madhya Pradesh. It is submitted that the delay in filing these appeals had not been deliberate but happened on account of various steps required for filing appeal by way of permissions required from various offices including Police Headquarters (PHQ). The appellants have relied upon the decision of Collector, Land Acquisition Anantnag and Another Versus Mst. Katiji And others - AIR 1987-SC-1353 and the decision of Hon'ble Delhi High Court in the case of Jyotsana Sarda Vs. Gaurav Sharda & among other - 169 (2010) Delhi Law Times, 630. On merits of the case, it was submitted that the learned Commissioner (Appeals) has rejected the appeals filed by the appellant on the ground of preferring appeals beyond the prescribed time limit, a period of two months under Section 85 of Finance Act, 1994. The Commissioner (Appeals), on sufficient cause being shown, may further extend the time limit by next one month. As these appeals have been filed beyond the prescribed time limit of 90 days, the Commissioner (Appeals) has rejected the appeals. 3. Learned Advocate, on behalf of....
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....ls) under the Finance Act which is two months extendable by yet another month. Beyond this period of three months the Commissioner (Appeals) has no power to condone delay in filing the appeal before him against the order passed by the authority subordinate to Commissioner. In these cases also, the appellants have filed appeal after lapse of 90 days from passing of original order. Learned Authorised Representative submitted a written reply as directed by the bench with copy to learned Advocate for the appellant. The learned Advocate for the appellant also submitted a rejoinder in response to written submissions made by the appellant. These submissions were considered and taken on record. 5. After hearing learned Advocate on behalf of the appellant and learned Authorised representative on behalf of the Revenue, we find that the issue involved in these appeals are two fold. The first being that there is delay of 310 days and 890 days in filing of these appeals, although there has been a substantial delay in filing the appeal beyond the prescribed period as per the Finance Act, but following the decision of Land Acquisition Anantnag (supra) and Jyotsana Sarda (supra), and in the inter....
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.... Hon'ble Supreme Court otiose. He prayed for condoning delay in filing appeal before Commissioner (Appeals) in Appeal No. 53900/18 under Finance Act, 1994, as there is no special rider to exclusive Section 4 to 24 of Limitation Act. In view of above, he submits that delay in filing the appeal before Commissioner (Appeals) in the impugned orders are contrary to the provisions of law declared by Supreme Court in terms of Article 142 of Constitution of India and thus required to be set aside. 6. Per contra, learned Authorised Representative on behalf of the Revenue submits that the learned Commissioner has rightly dismissed appeals filed by the appellants on the ground of limitation. There is a delay of 28 days in filing the appeal before Commissioner (Appeals) in case of order dated 28.8.2017 and, after the maximum period of 90 days prescribed under Section 85 of Finance Act. Therefore, the delay is not condonable as per the provisions of Section 85 of the Finance Act. 6.1 Learned Authorised Representative further submits that Hon'ble Principal Bench of this Tribunal in the case of M/s Diamond Construction (Appeal No. ST/51592/2016) on 19.2.2019 has decided the matter which was qui....
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....gh Enterprises (supra). 7. Learned Authorised Representative of the Department also placed reliance on the following case laws, wherein it is held that the provisions of Limitation Act, are not applicable under the provisions of Section 85 of the Finance Act: (i) Amchong Tea Estate Vs. Union of India - 2010 (257) ELT 3 (SC); (ii) Commr. of C. Ex. & ST, Rajkot Vs. Essar Bulk Terminal Salaya Ltd. - 2018 (363) ELT 262 (Tri.-Ahmd.); (iii) Bharat Sanchar Nigam Ltd. Vs. Union of India - 2018 (15) GSTL 331 (Guj); (iv) Todays Petrotech Limited Vs. Joint Commissioner - 2017 (7) GSTL 145 (Guj.); (v) Commr. of Cus. & C. Ex. Alld. Vs. Ashok Kumar Tiwari - 2015 (37) STR 712 (All.); (vi) Nirantar Security Pvt. Ltd. Vs. Union of India - 2017 (5) GSTL 365 (Guj.); (vii) Ramesh Vasantbhai Bhojani Vs. Union of India - 2017 (357) ELT 63 (Guj.); and (viii) Phoenix Plasts Co. Vs. Commr. of C. Ex. (Appeal-I), Bangalore - 2016 (344) ELT 148 (Kar.). 7.1 Learned Authorised Representative also placed reliance on the decision of Hon'ble Orissa High Court in the case of Collector of CE & Cus. Vs. Golden Hind Shipping (India) Pvt. Ltd. - 1993 (68) ELT 739, wherein it is held as under: ....
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.... the limits or not to do so for condoning the delay. Exercise of extraordinary writ jurisdiction under Articles 226/227 of the Constitution of India would amount to doing violence to the statutory provision and rendering the same otiose. In other words, the legislative intent is clear that the Parliament never intended that delay beyond specified period in filing the appeal could be condoned. It is not for the High Court to re-write the statute in the grab of exercise of its jurisdiction under Articles 226/227 of the Constitution." In view of the aforesaid submission, it was humbly prayed by the learned Authorised Representative that the appeal filed by the appellant is not sustainable both on account of delay in filing appeal before Commissioner (Appeals). 8. We have considered the rival submissions and perused the case record. 9. As we have already condoned the delay in filing the appeals considering the extraordinary situation, the next question before us is to decide as to whether the Commissioner (Appeals) is empowered to condone the delay in filing appeal before him under the provisions of Section 85 of Finance Act or not. Learned Advocate has relied on the decision of Ans....
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.... said judgment with regard to the jurisdiction of the High Court in the matter of condoning delay beyond the prescribed period under the Act. After finding that under Section 35H of the unamended Act (before enactment of Act 49/2005), with regard to application for reference, the High Court exercises its advisory jurisdiction in a case where the substantial question of law of public importance arise, the said Bench directed the matter to be heard by Larger Bench. In this way, all the above mentioned matters arising from the judgments of the Allahabad High Court on identical issue posted before this Bench for determining the question, namely, "whether the High Court in the reference application under Section 35H(1) of the unamended Act, has power under Section 5 of the Limitation Act, 1963 to condone the delay beyond the period prescribed under the main statute i.e., Central Excise Act." 12. Article 214 of the Constitution of India makes it clear that there shall be a High Court for each State and Art. 215 states that every High Court shall be a court of record and shall have all the powers including the power to punish for contempt of itself. Though we have adverted to Section 35....
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....if there is sufficient cause in the case of an appeal to Appellate Tribunal. Also an additional period of 90 days in the case of revision by Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, the Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd., Noida (supra). Commissioner of Customs, Central Excise, Noida is the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and Others, (2008) 3 SCC 70 concluded that "the High Court was justified in holding that there was no power for condonation of delay in filing reference application." 19. As pointed out earlier, the language used in S....
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....al 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 sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of....
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....ture. It is for the legislature to prescribe the limits or not to do so for condoning the delay. Exercise of extraordinary writ jurisdiction under Articles 226/227 of the Constitution of India would amount to doing violence to the statutory provision and rendering the same otiose. In other words, the legislative intent is clear that the Parliament never intended that delay beyond specified period in filing the appeal could be condoned. It is not for the High Court to re-write the statute in the grab of exercise of its jurisdiction under Articles 226/227 of the Constitution. The view which has been expressed by us herein above, is supported by various judicial precedents." 8. Further in Patel Brothers v. State of Assam and Others - (2017) 2 SCC 350 = 2017 (345) E.L.T. 578 (S.C.), it has been held by the Apex Court that condonation of delay by invoking Section 5 of the Limitation Act, 1963 when such delay is beyond the prescribed period, is not permissible. 9. In view of the above, we do not find any ground to interfere with the order dated 11-4-2017, Annexure A.7 passed by the Tribunal, upholding the order passed by the Commissioner (Appeals) whereby the appeal filed by the appe....