Provincial Automobile Co. Pvt. Ltd vs Commissioner Of Central Excise, Nagpur

(Arising out of Order-in-Appeal No. NGP/EXCUS/000/APP/080/14-15 dated 24-07-2014 passed by Commissioner of Central Excise (Appeals), Nagpur.)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, Member (Technical)

======================================================

1. Whether Press Reporters may be allowed to see : No 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 : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

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

4. Whether Order is to be circulated to the Departmental : Yes authorities?

====================================================== Provincial Automobile Co. Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Nagpur Respondent

Appearance: None for Appellant Shri A.B.Kulgod, Additional Commissioner (AR), for Respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing : 31/08/2015 Date of Decision : 31/08/2015

ORDER NO

Per: M.V. Ravindran

When this application was called out none appear on behalf of the applicant.

2. Heard the learned departmental representative and perused the records.

3. The application for condonation of delay is filed by the appellant for condoling delay of 40 days in filing the appeal before the Tribunal. As the delay have been properly explained we condone the delay and take SPs appeal on records.

4. On perusal of the appeal, we find that the appeal itself can be disposed of this juncture; accordingly we dispose of the stay petition and take up the appeal for disposal.

5. It is seen from the records and impugned order that the appellant has filed the appeal before the first appellate authority beyond the period as provided under section 85 of the Finance Act 1994. The first appellate authority has in our view, correctly held that he has no power to condone the delay, if the delay is beyond the period as provided in statute. The findings of the first appellate authority are as under.

3. The appeals procedure in respect of service tax matters is governed by the provisions of section 85 of the Finance Act, 1994. After insertion of Sub-section (3A) to section 85 of Finance Act 1994, with effect from 28,05,2012, an appeal against the order of an adjudicating authority is required to be presented within two months from the date of receipt of the decision or order of such adjudicating authority. The proviso thereto empowers the Commissioner (Appeals) to allow the appeal to be filed within a further period of one month, subject to his satisfaction that the appellant was prevented by sufficient cause from presenting the appeal within the normal month. In terms of the provisions of Section 85 of Finance Act, 1994, as amended, the Commissioner(Appeals) has no authority to entertain an appeal if the same is presented outside the prescribed total period of three months. Therefore, without going into the merits of the case or into the merits of application for condonation of delay, the appeal filed by the appellant is dismissed being filed after expiry of the prescribed period. We do not find any reason to interfere in such a reasoned order and covered by the judgment of Honorable Supreme Court in the case of Singh Enterprises 2008(221) E.L.T. 163 (S.C.).

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.

6. In view of the foregoing the appeal is devoid of merits and is rejected.

(Pronounced in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

akp 1 4 APPEAL No.ST/89991/14-Mum