Commissioner Excise (Appeals) could not condone Delay in filing Appeal beyond 30 days: CESTAT [Read Order]

The Allahabad bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that the Commissioner of Excise (Appeals) could not condone the delay in filing the appeal beyond 30 days and dismissed the appeal.

M/s Style Digital Color Lab, the appellant challenged the order-in-Appeal No.10/ST/Alld/2024 dated 08/01/2024 passed by Commissioner (Appeals) Central Excise & Service Tax, Allahabad.

A single bench of Sanjiv Srivastava, Member (Technical) considered the impugned order along with the submissions made in appeal and during the course of arguments. The issue involved in the present appeal is with respect of condonation of delay in filing the appeal by the Commissioner (Appeal).

The appeal has been filed as observed by the Commissioner (Appeal) after more than expiry of period of 90 days after the receipt of the order of original authority.

The Supreme Court in the case of M/s Singh Enterprises [2008 ], held that Commissioner (Appeals) could not condone the delay beyond the 30 days in filing the appeal before.

Comprehensive Guide of Law and Procedure for Filing of Income Tax Appeals, Click Here

Section 35 of the Act states that 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 as 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.

(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.”

It is to be noted that the periods “sixty days” and “thirty days” have been substituted for “within three months” and “three months” by Act 14 of 2001, with effect from 11-5-2001.

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 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 time can be granted by the appellate authority to entertain the appeal.

Comprehensive Guide of Law and Procedure for Filing of Income Tax Appeals, Click Here

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.

Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period.

There was no law declared by the 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.

Considering the circumstance, the tribunal dimissed the appeal.

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