Shambhu Synthetics Pvt. Ltd. vs. Commissioner of Customs - (Customs, Excise and Service Tax Appellate Tribunal) (01 Apr 2021)

Any delay beyond the extended period of thirty days after expiry of normal period of sixty days, cannot be condoned

MANU/CE/0036/2021

Customs

Present appeal is directed against the order passed by the Commissioner of Customs (Appeals), by which the appeal filed to assail the order passed by the Additional Commissioner of Customs has the Commissioner (Appeals) been dismissed for the reason that, the appeal had been filed even beyond the permissible time limit contemplated under Section 128 of the Customs Act, 1962.

The records indicate that, the Appellant received a copy of the order dated 31st March, 2018 passed by the Additional Commissioner on 13th April, 2018 and the appeal was filed before the Commissioner (Appeals) on 22nd July, 2018. According to Section 128 of the Customs Act, an appeal can be filed before the Commissioner (Appeals) within sixty days from the date of communication to him of such decision or order. However, 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. Thus, at best, the delay of thirty days beyond the stipulated limit of sixty days in filing the appeal by can be condoned, provided that the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of sixty days.

This issue came up for decision before the Supreme Court in Singh Enterprises vs. CCE, Jamshedpur . The Supreme Court examined the provisions of Section 35 of the Central Excise Act, 1944, which are para materia to the provisions of Section 128 of the Customs Act and observed that, the delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days, which is normal period for preferring the appeal. The Commissioner and High Court were justified in holding that there was no power to condone the delay after expiry of 30 days period and that the provisions of the Limitation Act would not be applicable.

Power under Section 35B of Customs Act dealing with Appeals to the Appellate Tribunal cannot enable the Appellate Tribunal to condone any delay in filing the appeal before the Commissioner (Appeals) beyond the extended period of thirty days, after the expiry of the normal period of sixty days.

The Supreme Court in Singh Enterprises categorically held that, any delay beyond the extended period of thirty days after expiry of normal period of sixty days, cannot be condoned since the Statue does not permit and the provisions of Section 5 of the Limitation Act, 1963 would not apply. The decision of the Supreme Court in Singh Enterprises is binding.

Such being the position, it is not possible to accept the contentions of learned counsel for the Appellant that, the provisions of Section 5 of the Limitation Act should be invoked even if the delay is beyond the extended period of thirty days or that the Tribunal has a discretionary power to condone any delay in filing the appeal even after the expiry of the extended period of thirty days. The Commissioner (Appeals), therefore, committed no illegality is dismissing the appeal for the reason that any delay beyond ninety days could not be condoned. Appeal dismissed.

Tags : DELAY CONDONATION ENTITLEMENT