2023 (3) TMI 1274

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....ance Act, 1994 [the Finance Act]. 2. Case has been called out but no one has appeared on behalf of the appellant even though the notice dated 08.02.2023 sent to the appellant and the learned Chartered Accountant appearing for the appellant was served upon them on 13.02.2023 and 15.02.2023 respectively. The appeal is, accordingly, being decided on merits after perusing the records and after hearing Shri Harshvardhan, learned authorized representative appearing for the Department. 2.1. In order to appreciate the issue involved, it will be useful to reproduce the relevant provisions of section 85 of the Finance Act and they are as follows:- "85. Appeals to the Commissioner of Central Excise (Appeals)- (1) Any person agg....

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....vanced by the learned authorized representative appearing for the Department have been considered. 7. On a plain reading of the aforesaid provisions of section 85(3A) of the Finance Act, it is clear that any person aggrieved by any decision or order passed by the adjudicating authority may appeal to the Commissioner (Appeals) within two months from the date of receipt of the decisions or orders. The proviso, however, stipulates 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 two months, allow it to be presented within a further period of one month. It is, therefore, clear that an appeal can be filed within two months fro....

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....r 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 tim....

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....gorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business there was delay does not stand to be reason. I.T.C.'s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order a....