Can CESTAT condone delay for filing of Appeal before Commissioner (Appeals) beyond permissible time limit prescribed under the statute?
There are plethoras of cases where appellant was failed to file an appeal before Commissioner (Appeals) within the statutory time limit prescribed in the Act due to various reasons. These reasons can be due to lack of knowledge, mis-guidance by the counsel, negligence, ignorance or reasons beyond the control of appellant.
As per the provision of Section 35 of Central Excise Act, 1944
Appeals to [Commissioner (Appeals)].—
(1) 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.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.]
It is very clearly written in Sub section (1) of Section 35 that Commissioner (Appeals) can condone further delay of 30 days that too, if sufficient reason was shown by the appellant for non filing of the appeal within statutory period of 60 days. Therefore, under this section Commissioner (Appeals) has no power to condone the delay beyond 90 days i.e 60 days plus 30 days.
Now, the question arisen here is, whether the Tribunal has power to condone the delay beyond 90 days at its end.
Section 35C of the CEA refers to Orders of Appellate Tribunals, therefore it is important to look at the provision contained in Section 35C clause 1 which reads as follows:-
“The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such order thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be after taking additional evidence, if necessary”.
From the bare reading of Section 35C it can be said that without modifying or annulling the decision appealed against, Tribunal can refer the case back to the authority which passed such decision with directions as the appellate tribunal may think fit including a direction for fresh adjudication or decision. Therefore, as per section 35C the Hon’ble Tribunal at its discretion can condone the delay beyond 90 days too.
Recently, the Hon’ble Tribunal using its discretionary power in the case of M/s Jadish Ispat Pvt. Ltd. Versus The Commissioner Cgst, Central Excise And Customs, has condone the delay of 251 days observing that as per the provision of Section 35 of CEA, 1944, Commissioner (Appeals) doesn’t have the power to condone the delay but Tribunal has the power to condone the delay under Section 5 of Limitation Act, 1963 and remanded back the matter to the Commissioner (Appeals) to pass the order on the merits of the case. It was observed by the Hon’ble Judicial Member, that appellant has shown sufficient cause for non filing of appeal beyond prescribed time limit, therefore it is imperative to condone the delay by taking the aid of Section 5 of Limitation Act.
In the abovestated case appellant deposited the mandatory pre deposit of 7.5% of the demand confirmed that too within 60 days of receiving the order in original. Further, the payment proof along with requisite documents was given to the Counsel and the subsequent delay was occurred at Counsel’s end. In the instant case the delay in filing appeal was totally the fault of Counsel hence, Section 5 of Limitation Act, came in picture for rendering the justice to the appellant.
Now, it is imperative to have a look at the provision contained in Section 5 of Limitation Act, 1963 which reads as follows:
Extension of prescribed period in certain cases. —Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.— The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
The Hon’ble Apex Court in the case of Singh Enterprises Versus Commissioner Of C. Ex., Jamshedpur 2008 (221) E.L.T. 163 (SC) has observed that Commissioner (Appeals) is not vested with the power to condone the delay beyond the permissible period provided under the statute. Further, in this case also the Hon’ble Apex court in para 10 has observed that “In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct.”
The Hon’ble Apex Court in the case of Assistant Commissioner (Ct) Ltu, Kakinada & Ors. Versus M/S. Glaxo Smith Kline Consumer Health Care Ltd. 2020 (5) TMI 149 – SUPREME COURT has observed in para 19 that “Since the statutory period specified for filing an appeal had expired long back in August 2017 itself and appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file an appeal within the prescribed time, no indulgence could be shown to the Respondent at all”.
However, the important question which arisen here is what should be the sufficient cause according to Section 5 of Limitation Act. What all cases will fall under the ambit of sufficient cause for condonation of delay?
The Hon’ble Apex Court in these cases gave a ray of hope by observing that, if the Appellant has shown sufficient and well deserved reason for non filing of appeal before Appellate Authority within statutory time limit then Courts have discretionary power to condone the delay beyond the statutory time limit given in the Act.
Therefore, going by the wordings of the judgment passed by the Hon’ble Apex Court and CESTAT, Delhi, if, appellant is able to show the sufficient cause for delay in filing of appeal then the doors of COURTS are open for the deserving candidates and justice shall be served to the victim of circumstances.
Priyanka Goel, Advocate – [email protected]
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