M/S. Sri Balaji Agency vs Cce & St, Trichy

(Arising out of Order-in-Appeal No.26/2013 dated 28.03.2013 passed by the Commissioner of Central Excise (Appeals), Trichy)

M/s. Sri Balaji Agency Appellant

Versus

CCE & ST, Trichy Respondent

Appearance:

M. N. Bharathi, Advocate, for the Appellant Shri B. Balamurugan, AC (AR), for the Respondent

CORAM

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing : 23-09-2015 Date of Decision: 23-09-2015

Final Order No. 41531 / 2015

Per P. K. Choudhary

Heard Shri M.N. Bharathi, learned Advocate for the appellant and Shri B. Balamurugan learned AC( AR), for the respondent. As the issue lies on a narrow compass, after disposing the stay application we take up the appeal for hearing.

2. After hearing both sides and on perusal of the records, We find that the Commissioner (Appeals) dismissed the appeal on the ground that the appeal was filed beyond the condonable period under Section 85 of the Finance Act, 1994. There is no dispute on the fact that the appellant received the adjudication order on 07-08-2012 and the appeal should have been filed on 05-11-2012 including the condonable period of limitation under Section 85 of the said Act. The appellant filed appeal on 01-02-2013. Hence the Commissioner (Appeals) rejected the appeal on the ground that he has no power to condone the delay beyond the condonable period of limitation.

3. Ld. Advocate on behalf of the appellant drew the Attention of the Bench to the Preamble of the adjudication Order. It is seen from the Preamble of the adjudication order that the appeal would be filed within 3 months from the date of receipt of the order under Section 85 of the Finance Act, 1994. Ld. Advocate submits that limitation under Section 85 was amended on 28.5.2012 and thereafter the adjudication order. So the appellant should not be punished for the wrong act on the part of Revenue. Ld. Advocate relied upon the decision of the Tribunal in the case of Bansal Ispat Udyog Vs. CCE Bhopal- 2003 (160) ELT 813 (Tri.-Del.).

4. On the other hand, Ld. AR on behalf of the Revenue submits that the Honble Supreme Court in the case of Singh Enterprises Vs CCE Jamshedpur  2008 (221) ELT 163 (SC) held that Commissioner (Appeals) has no power to condone The delay beyond the condonable period of limitation under Section 35 of the Central Excise Act, 1994 which is pari materia to Section 85 of the Finance Act, 1994. It is submitted that the Tribunal consistently held that on the plea of wrong mentioning of period of filling appeal of three months in preamble of the adjudication order, delay cannot be condoned by overriding the statutory limit of filling the appeal. He relies upon the following decisions :-

(1) Raghav Industries Vs CC Amritsar 2008 (231) ELT 298 (Tri.-Chennai) (2) Sagar Enterprises Vs CC Tuticorin 2009 (247) ELT 410 (Tri.-Chennai) We have carefully examined submissions of both sides, and the issue in the present appeal lies in the narrow compass, where the Commissioner of Central Excise (Appeals) dismissed the appeal as time barred under Section 35F of the Central Excise Act, 1944 read with Section 85 of the Finance Act, 1944, as the Appellate Authority has no power to condone the delay beyond the condonable period. The appellants only contention is that the preamble or the O-in-O mentions that the appeal would be filed within three months whereas Section 35 F was amended w.e.f. 28-05-2012 and the adjudication order was passed subsequently on 25-07-2012 i.e. after the amendment.

5. We find that the Hon'ble Supreme Court on identical issue of condonation of dealy in the case of Singh Enterprises (supra) held as under :-

"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 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. 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."

The Supreme Court clearly held that the Commissioner (Appeals) has no power to condone the delay after expiry of 30 days period as provided under Section 85 of the Finance Act, 1994. We agree with the submission of the Revenue that there is no power of Commissioner (Appeals) to condone the delay. The wrong mentioning of the period of limitation in the preamble cannot override the statutory provision. We also notice that the Tribunal in the case of Raghav Industries (supra) and Sagar Enterprises (supra) dismissed the appeal on the similar ground.

6. In view of the above discussion, we do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal filed by the appellant is rejected. Stay application is disposed of.

(Dictated and Pronounced in open court)

(P.K. CHOUDHARY) ( R. PERIASAMI) JUDICAL MEMBER TECHNICAL MEMBER

RKP

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