The Allahabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that any delay in filing an appeal beyond the extended period of thirty days or after expiry of the normal period of sixty days cannot be condoned since the Statute does not permit and the provisions of Section 5 of the Limitation Act,1980 would not apply.
Arvind Kumar Soni, the appellant assessee filed an appeal of ninety days delay from the date of communication of the order, and the issue involved in the present appeal was in respect of condoning the delay of thirty-one days in filing the appeal to Commissioner (Appeals) as per section 128 of the Customs Act, 1962 could have condoned the delay of thirty days.
Anurag Tripathi, the counsel for the assessee contended that section 35(1) of the Central Excise Act,1944 makes it clear that the appellate authority had no power to allow the appeal to be presented beyond the period of thirty days after the normal period of limitation of sixty days.
Manish Raj, the counsel for the department contended that the delay of thirty days beyond the stipulated limit of sixty days in filing the appeal can be condoned, provided of course that the Commissioner (Appeals) was satisfied that the assessee was prevented by sufficient cause from presenting the appeal within sixty days.
The Bench observed that the Tribunal does not have any power, much less discretionary power, to condone any delay beyond the extended period of thirty days after the expiry of the normal period of sixty days, and the Commissioner (Appeals), therefore, committed no illegality was dismissing the appeal for the reason that any delay beyond ninety days could not be condoned.
A single-member bench comprising Sanjiv Srivastava (Technical) upheld the dismissal of the appeal passed by the Commissioner (Appeals) while dismissing the appeal filed by the assessee.
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