M/S. Up State Irrigation vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 117/CE/APPL/2005 dated 20.12.2005 passed by Commissioner of Central Excise (Appeals), Allahabad]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

Hon'ble Mr. B Ravichandran , Member (Technical)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. UP State Irrigation Appellants Workshop Division .

Vs.

Commissioner of Central Excise Respondent

Allahabad

Appearance:

Shri Bipin Garg, Advocate for the Appellants

Shri Ranjan Khanna, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Hon'ble Mr. B Ravichandran, Member (Technical)

Date of Hearing /decision: 8.7.2015

FINAL ORDER NO. A/ 52324 /2015-EX(DB)

Per Ashok Jindal :

The appellant is in appeal against the impugned order wherein Learned Commissioner (Appeals) has dismissed the appeal on the ground that Commissioner (Appeals) has no power under the provisions of Section 35(1) of Central Excise Act, 1944 to condone the delay beyond three months.

2. The facts of the case, in brief, are that the adjudication order dated 25.10.2000 was received by the appellant on 30.10.2000. Against the said order, the appellant filed appeal before Commissioner (Appeals) on 4.2.2002 which is beyond more than 15 months along with application for Condonation of delay. The learned Commissioner (Appeals) holding that Commissioner (Appeals) has no power to condone the delay beyond the period prescribed under section 35(1) of the Central Excise Act, 1944, the appeal was dismissed. The said order was challenged by the appellant before the Honble Allahabad High Court in Writ petition No. 600/2003. The Honble High Court quashed the order of Commissioner (Appeals) and directed him to decide the Condonation of delay application filed by the appellant on merit. In consequence to that, learned Commissioner (Appeals) has again passed the order and dismissed the appeal after considering the application for Condonation of delay holding that Commissioner (Appeals) has no power under the provisions of Section 35(1) of Central Excise Act, 1944 to condone the delay beyond 3 months. Against the said order, appellant is before us .

3. Learned Counsel for the appellant submits that the Honble High Court has directed the learned Commissioner (Appeals) to decide the application for Condonation of delay on merits, but without considering the merits, learned Commissioner (Appeals) has passed the order holding that as he has no power to condone the delay beyond three months, therefore, impugned order is not on merits and same is required to be set aside. He further, submits that it is an ex-parte order passed by the learned Commissioner (Appeals).

4. On the other hand, learned AR opposed the contention of the learned Counsel and submits that Honble High Court has directed the learned Commissioner (Appeals) to decide the application for Condonation of delay on merits and after considering the application for Condonation of delay, the learned Commissioner (Appeals) has observed that as per Section 35(1) of Central Excise Act, 1944, he has no power to entertain any appeal which is filed beyond three months. Therefore, he considered the COD application and dismissed the same. Consequently, appeal was also dismissed. To support his contentions, he relied on the decision of Honble High Court of Allahabad in the case of Modi Distillery vs. CESTAT, New Delhi [2008 (224) ELT 397 (All); Doaba Rolling Mills (P) Ltd. vs. CEGAT New Delhi [2004 (169) ELT 258 (All)]; and Singh Enterprises vs. CCE Jamshedpur [2008 (221) ELT 163 (SC)].

5. Heard the parties. Considered the submissions.

6. In this case, the Honble High Court has directed learned Commissioner (Appeals) to decide the application for Condonation of delay on merits. The provisions of section 35(1) of Central Excise Act, 1944 restrict the time limit for learned Commissioner (Appeals) to entertain the appeal within two months and which can extend to period of 30 days which is sufficient time as shown to make appeal before him causing delay as per the statute before the Commissioner (Appeals). Commissioner (Appeals) is restricted not to entertain any appeal filed beyond three months and said fact has been affirmed by Honble Apex Court in the case of Singh Enterprises (supra).

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.

7. Same view has been taken by the Division Bench of Allahabad High Court in the case of Doaba Rollling Mills (P) Ltd. (supra) and Modi Distillery (supra). Therefore, learned Commissioner (Appeals) have no power to entertain any appeal which is filed beyond the period prescribed under section 35(1) of Central Excise Act, 1944.

8. We have also seen the orders of the Honble High Courts which are of Division Bench. In this case decision has been passed by Single Judge. The decision of Division Bench will prevail over decision of Single Judge. We also observed that the direction of the Honble High Court were followed by the learned Commissioner (Appeals) and decided the application for Condonation of delay on its merits, for which he has no power to condone the delay in filing the appeal wherein the appeal is filed beyond the prescribed time limit as per Section 35 (1) of Central Excise Act, 1944. Therefore, we do not find any infirmity in the impugned order. Same is upheld .

8. Appeal filed by the appellant is dismissed.

( Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

( B Ravichandran )

Member(Technical)

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