2024 (6) TMI 626

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....als) was dismissed only on time bar. As the appeal was filed before the Commissioner (Appeals) after 90 days from the date of communication of the order-in-Appeal. Therefore, this appeal can be decided only on time bar before the Commissioner (Appeals). 4. On careful consideration of the submission made by both the sides and perusal of records, we find that though the appellant have strong prima facie case on merit in their favour. However, Learned Commissioner dismissed the appeal on the ground of time bar. The discussion and finding of the Commissioner (Appeals) is reproduced below:- "4. I find that procedure for filing an appeals under Section 85 of the Finance Act, 1994 are as under:- (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating au....

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....se (Appeals) within a period of 60 days and it is further provided that the Commissioner (Appeals) if is satisfied that the appellant was prevented by sufficient cause, he may allow the appeal to be presented within further period of 30 days. 4.3 The Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944). 4.4 In all aforesaid appeals the following question in legality required to be decided:- (1) Whether the period of limitation provided of 60 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only up to 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal? (2) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 days, then whether Writ Patition under Article 226 of the Constitution of India would lie for the purpose of condoning the delay in filing the appeal? ....

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....y 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 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. 4.8 I relied upon the decision in the case of D.R. Industries Limited v. Union of India reported in 2008 (229) E.L.T. 24 (Guj.), wherein the same was considered in para 18, and raises another question in para-19 that if there is delay beyond 90 days, only such delay can be condoned in a Writ Petition under Article 226 of the Constitution of India. 4.9 In the case of D.R. Industries Ltd. (supra), the Division Bench of this Court had an occasion to examine the scope and ambit of....

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....oke the writ jurisdiction of this Court. Hence, in cases where the assessees have suffered gross injustice and they could not file appeals before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order-in-original on account of circumstances beyond their control, such assessees can invoke the powers of this Court under Article 226 of the Constitution but, of course, not as a matter of right." ( Emphasis supplied ) 11 The aforesaid shows that the Division Bench of this Court in the case of D.R dustries Ltd. (supra) did not find any substance in the challenge to the constitutional validity f the provisions of Section 35 of the Act and further expressed the view that the power to ondone delay by the Commissioner (Appeals) is for a period of 30 days after the expiry of he limitation period of 60 days, but while further considering the extraordinary cases where ross injustice has been done by the adjudicating authority but the assessee could not prefer ppeal within the outer limit of 90 days, it was observed that the assessee can invoke the ower of this Court under Article 226 of the Constitution, but of course not as of right.....