TaxTMI 
TaxTMI 
2008 (3) TMI 213
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....ms of erstwhile Rule 173Q(1) of the Central Excise Rules, 1944. The petitioner preferred an appeal against the said order before the Commissioner (Appeals), Central Excise & Customs, Vadodara on 11-2-2003 along with an application for condoning the delay. The petitioner contended that although the impugned order was handed over by the Superintendent, Central Excise to their consultant in July, 2002, the same was not handed over to the petitioner and that the petitioner Company received the order only on 27-1-2003 and, therefore, the appeal filed on 11-2-2003 was within the limitation period of 60 days. It was contended in the alternative that if there was delay, there was sufficient cause for the delay in presenting the appeal beyond the limitation period of 60 days and, therefore, the delay may be condoned. The Commissioner (Appeals) took the view that the impugned order was served upon the petitioner in July, 2002 and, therefore, the time limit of 60 days for filing the appeal expired in September, 2002. The Commissioner (Appeals) can condone the delay only for a period upto 30 days after expiry of the limitation period of 60 days and, therefore, the total period of 90 days ha....
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....e Tax Appellate Tribunal. In all the three cases, the Tribunal confirmed that the Commissioner (Appeals) had no power to condone the delay beyond the powers given to him under the proviso to Section 35(1) of the Act. 6. The petitioners have thereupon filed these petitions and have challenged the constitutional validity of the proviso to sub-section (1) of Section 35 of the Central Excise Act, 1944 in so far as the power of condonation of delay conferred on the Commissioner (Appeals) is confined to a period of only 30 days. The said Section reads as under :- "35. Appeals to Commissioner (Appeals). - Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that 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 ....
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....ry. 7.3 The Commissioner (Appeals) entertains appeals against the orders passed by the Assistant Commissioner, Deputy Commissioner or Additional Commissioner of Central Excise. The Appellate Tribunal entertains First Appeals against the orders of the Commissioner as an adjudicating authority or Second Appeals against the orders of the Commissioner (Appeals). It is only a fortuitous circumstance whether the adjudicating authority shall be Commissioner or any officer subordinate to him. The same question may be involved before a Deputy Commissioner and before a Commissioner. The difference in their jurisdiction may only depend upon the amount of duty involved. However, assessees who are otherwise similarly situate are classified in two different categories and thus by treating similars differently discrimination is meted out against the assessees whose cases are adjudicated by an officer subordinate to the Commissioner because in their case the power of condonation of delay conferred on the Commissioner (Appeals) is only for a period of 30 days upon expiry of the limitation period of 60 days. On the other hand, the Appellate Tribunal hearing first appeal or second appeal against t....
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....e word "Collector (Appeals)" was substituted by the word "Commissioner (Appeals)". However, by Finance Act, 2001, in case of Commissioner (Appeals) the period of limitation was curtailed from three months to 60 days and the period for condoning delay was curtailed from a further period of three months to a further period of 30 days. Sub-section (4A) inserted in Section 35A relating to procedure in appeal also requires the Commissioner (Appeals) to endeavour to hear and decide every appeal within a period of six months from the date of filing. Reference is also made to the speech of the then Finance Minister on 28-2-2001 while presenting the Union Budget 2001-02. Reference is also made to the letter 28-2-2001 of the Joint Secretary (Prev.), Department of Revenue in the Ministry of Finance, Government of India. (ii) It is also submitted that appeal is a creature of the statute and, therefore, any person seeking to file the appeal has to file the appeal within such period of limitation as may be provided for in the statute. The right to appeal being a statutory right can be circumscribed by the conditions in the grant. Right to appeal is neither an absolute right nor an ingredie....
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.... Prakash Mehta, 1989 (39) E.L.T. 178 (S.C.) = 1988 (4) SCC 402].). Where a right of appeal is provided under an Act, limitation thereof must also be provided in the Act. Accordingly, when the Parliament confers the right of appeal under Section 35(1) of the Central Excise Act, the Parliament also has the power to restrict the right by providing for a specific period of limitation. The Parliament also has the equal power to provide for the maximum period of condonable delay. 10. While enacting the Limitation Act, 1963 providing for limitation of suits and other proceedings, the Parliament provided in Section 5 of the said Act that on the appellant satisfying the Court that there was sufficient cause for not preferring the appeal or application within a period of limitation as prescribed in the Act; the Court will have the power to condone the delay. Sub-section (2) of Section 29 of the Limitation Act also provides that where any civil or local law prescribes a period of limitation different from the period prescribed by the schedule in the Limitation Act, the provisions contained in Sections 4 to 24 of the Limitation Act shall apply only in so far as and only to the extent to whi....
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....ion period of 60 days within which the appeal ought to have been filed. The aforesaid decision dated 11-5-2007 is reported in M.R. Tobacco Pvt. Ltd. v. Union of India, 2007 (213) E.L.T. A115 (S.C.). 12. We may also note at this stage that even where the revenue is aggrieved by an order of an adjudicating authority, suo motu power of initiation of appeal conferred on the Commissioner under Section 35E(3) of the Act is also to be exercised within a period of three months. This period was earlier one year, but is now reduced to three months by Finance Act, 2007, that is, within three months from the date of communication of the decision or order of the adjudicating authority subordinate to him, the Commissioner of Central Excise may direct the subordinate officer to apply to the Commissioner (Appeals) for determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order. Thereafter within a period of one month (reduced from three months by Finance Act, 2007) from the date of communication of such order, the adjudicating authority or authorized officer shall make an application before the Commissioner (Appeals) r....
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....tate and sometimes at more than one place in a State, the principal seat of the Appellate Tribunal was at Delhi and its benches were to be found only in three other metro cities of Bombay, Calcutta and Madras. Even now the Appellate Tribunal has its benches in only 5 cities in addition to its principal seat at Delhi, Assessees carrying on their business at far away places cannot therefore, be expected to file appeals before the Appellate Tribunal as expeditiously as they would be in a position to file the appeals before the Commissioner (Appeals) in their respective States. Hence, assessees preferring appeals before the Appellate Tribunals are in a different class as compared to assessees filing appeals before the Commissioner (Appeals). We therefore, do no, find any substance whatsoever in the petitioners contention that the assessees preferring appeals before the Commissioner (Appeals) and the preferring appeals before the Appellate Tribunal belong to the same class. The edifice petitioners' argument must, therefore, fall to the ground. 15. We may now refer to the decision of the Full bench of the Andhra Pradesh High Court on which strong reliance was placed by Mr. Kanabar for....
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....ry to refer to or deal with the decisions cited by the learned counsel for the petitioners as regards the burden of justifying differentiation or discrimination, 18. We, therefore, do not find any merit in any of the contentions raised on behalf of the petitioners for challenging the constitutional validity of the proviso to sub-section (1) of Section 35 of the Central Excise Act, 1944 in so far as the Parliament has provided for the limitation period of 60 days for filing an appeal before the Commissioner (Appeals) and in so far as the power to condone the delay conferred on the Commissioner (Appeals) is only for a period of 30 days after expiry of the limitation period of 60 days. 19. As regards the contention that there may be extra-ordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extraordinary cases where an assessee can show extra ordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdicti....