TaxTMI 
TaxTMI 
2023 (8) TMI 908
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..... 3. The issue involved in the present appeal is in respect of condoning the delay of thirty one days in filing the appeal. Commissioner (Appeals) as per section 128 of the Customs Act, 1962 could have condoned the delay of thirty days. Hon'ble Supreme Court held in case of Singh Enterprises [2008 (221) E.L.T. 163 (S.C.)] categorically held as follows:- "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 sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a furt....
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.... as to costs." 4. In view of the decision of the Hon'ble Supreme Court this Commissioner (Appeals) could not have condoned the delay as prayed for by the appellant. After taking the note of the above decision Delhi Bench has in case of Shambhu Synthetics Pvt. Ltd. vs. Commissioner of Customs, New Delhi [2021 (378) E.L.T. 208 (Tri.-Del.] held as follows:- "6. The relevant portion of Section 128 of the Customs Act, which deals with Appeals to Commissioner (Appeals), is reproduced below : "128. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner or Commissioner of Customs may appeal 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 further period of thirty days." 7. It would seen from the foresaid provision that an appeal can be filed bef....
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.... of the Supreme Court in Singh Enterprises observed that the discretion of the Commissioner to condone the delay is circumscribed by the conditions set out in the proviso and any delay beyond that period cannot be condoned. The relevant portion of the decision is reproduced below : "7. In order to appreciate the contentions advanced by the parties it would be appropriate to reproduce Section 85(3A) of the Finance Act which is as follows : "85. Appeals to the Commissioner of Central Excise (Appeals). - (3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to Service Tax, interest or penalty under this Chapter : Provided that the Commissioner of Central Excise (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." 8. A perusal of sub-section (3A) of Section 85 clearly indicates that an appeal shall be presented ....
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....the Supreme Court in Collector, Land Acquisition would not be of any help to the appellant. The Supreme Court, in the context of Section 5 of the Limitation Act, explained "sufficient cause". This decision would be helpful in only considering whether there was 'Sufficient cause' to explain the delay beyond sixty days and up to the expiry of period of thirty days. As noted above, Section 5 of the Limitation Act would not be applicable for condoning the delay beyond ninety days, in view of the aforesaid decision of the Supreme Court Singh Enterprises. 13. The Madras High Court in Kothari Sugars relied upon the aforesaid decision of the Supreme Court in Collector, Land Acquisition. This decision would, therefore, also not help the appellant. 14. Learned Counsel for the appellant also placed reliance on the decision of a Learned Member of the Tribunal in Jagdish Ispat. The Learned Member observed that even though the Commissioner (Appeals) committed no error in dismissing the appeal as barred by time since it was filed after a delay of 215 days, but still condoned the delay for the reason that the Tribunal is vested with jurisdiction to condone the delay even beyond t....