AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 1008
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....llant on account of noticed clandestine removal of MS ingots by the Appellant. Commissioner (Appeals) has dismissed the appeal only on the ground of limitation. Learned Counsel appearing for the Appellant, without impressing on the merits of the case, has expressed desire to submit on the aspect of limitation. 2. It is submitted that Section 5 of Limitation Act, 1963 permits the extension of prescribed period where the Appellant or the applicant satisfies that he had sufficient cause for not preferring the appeal or making the application within such period. Learned Counsel has also brought to my notice Section 29 of the Limitations Act which says that even in the case of special or local laws prescribing for any suit, appeal or applicatio....
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....too within 60 days of receiving the order in original. The payment proof along with requisite documents was given to the Counsel and the subsequent delay has occurred at Counsel's end for which the Appellant is prayed to not to be burdened with Order-under-challenge is, accordingly, prayed to be set aside and appeal is prayed to be dismissed. 4. Learned DR has laid emphasis on the decision of Hon'ble Supreme court in Singh Enterprises Vs Commissioner of Central Excise, Jamshedpur reported as 2008 (221) ELT 163 (SP) wherein it has been laid down by Hon'ble Apex Court that Commissioner (Appeals) is statutorily bound to not to condone the delay beyond 30 days of the period of 60 days within which the appeal could have been filed. 5....
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....iod prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Also the relevant provision for the purpose is Section 35 of the Excise Act which reads as follows: SECTION 35. Appeals to [Commissioner (Appeals)]. (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a [Principal Commissioner of ....
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.... be applicable. However, Section 35 of Special Act i.e. Central Excise Act limits the power of Commissioner Appeals to condone the delay in filing appeal, only to a period of 30 days after the period of 60 days from the date of receipt of the order to be challenged as is filed before him. The said observation is sufficient to hold that in case of Section 35 of Central Excise Act, the power of Commissioner (Appeals) to condone he delay in fling appeals is restricted to a particular period Section 5 & 29 of Limitations Act will not be applicable. 8. Learned Apex Court in the case of Singh Enterprises (supra) has held that Commissioner of Central Excise Appeals as also the Tribunal being the creatures of statute are vested with the jurisdict....
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.... provision is nowhere expressively excluding the applicability of provisions of Limitations Act that the provisions of Section 5 thereof shall be applicable and the appellate authority will be competent to condone the delay, in case the sufficient cause has been shown. As discussed above same is not true for Section 35, Excise Act, 1944 as there is a period statutorily provided for which Commissioner (Appeals) could condone the delay. Resultantly, I find no infirmity in the order-under-challenge where the appeal before Commissioner (Appeals) was filed before him after a delay of 215 days. 10. We, simultaneously, observe that Hon'ble Apex Court in Singh Enterprises itself has held that a Tribunal also been a creature of statute, is vested ....
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....sel, Shri Pankaj Tekriwal who has acknowledged the delay on his part submitting that his Clerk who received the papers of the appellant had left his job without informing about the impugned to have been filed. 11. These facts are sufficient to my opinion to hold that the delay in this case is not attributable to the appellant herein but to his Counsel. Hon'ble Apex Court in the case of Bansidhar and Company Vs. Collector of Central Excise, 1990 (50) ELT 192 (SP) has held that appellant should never be penalised for the default of the Counsel. This Tribunal also in the case of Jamuna Industry Vs. Commissioner of Central Excise, Jaipur reported as 2002 (148) ELT 1144 (Tri. Delhi) has held that when it is apparent on record that the appellan....