CESTAT Condone Delay Beyond 30 Days Filing First Appellate Authority
Introduction: In a recent decision, the Central Excise and Service Tax Appellate Tribunal (CESTAT) in Allahabad ruled on the issue of condoning delays in filing appeals beyond the stipulated 30-day period. The case involved Jai Maa Durga Engineers and the Additional Commissioner of Central Excise & Service Tax, and this article provides a comprehensive analysis of the decision’s implications.
1. Background: The case pertained to an appeal filed by Jai Maa Durga Engineers (the Appellant) against an Order-in-Original issued on January 10, 2017. The order was communicated to the Appellant on January 17, 2017. According to the relevant provisions, the Appellant was required to file the appeal within 60 days of the date of communication, which would be March 17, 2017.
2. Delay in Filing: However, the appeal was not filed within the stipulated 60 days. In fact, the Appellant submitted the appeal on May 15, 2017, which was beyond the 60-day window. This delay led the learned Commissioner (Appeals) to dismiss the appeal, citing that it was filed even after the 30-day condonable period had elapsed.
3. Legal Framework: The legal framework governing appeals in this case is Section 35 of the Central Excise Act. Section 35(1) allows any person aggrieved by a decision or order passed by a Central Excise Officer lower in rank than a Commissioner of Central Excise to appeal to the Commissioner of Central Excise (Appeals) within 60 days from the date of communication of the decision or order. However, the proviso to this section states that if the appellant can prove sufficient cause for not filing the appeal within the initial 60 days, the Commissioner (Appeals) may allow it to be presented within a further period of 30 days.
4. Supreme Court Precedent: In this context, the Hon’ble Supreme Court’s decision in Singh Enterprises CCE, Jamshedpur (2008) is instructive. The Supreme Court clarified that the appellate authority, in this case, the Commissioner of Central Excise (Appeals), has no power to allow an appeal to be presented beyond the period of 30 days following the initial 60-day limit. Consequently, Section 5 of the Indian Limitation Act, which deals with the condonation of delay, is excluded from application.
5. The Crucial Ruling: In the instant case, the Appellant’s appeal was filed more than 30 days after the initial 60-day period had lapsed. This delay was beyond the scope of the Commissioner (Appeals) to condone. Therefore, the appeal before the Commissioner (Appeals) had to be dismissed as it was time-barred.
6. Irrelevance of Sufficient Cause: While the concept of “sufficient cause” may allow for the condonation of delay under certain statutes, the Supreme Court’s decision emphasized that the timeframe specified in Section 35(1) of the Central Excise Act, along with its proviso, effectively excludes any further extension of time beyond 30 days.
7. Tribunal’s Dismissal: In line with the Supreme Court’s ruling, the CESTAT in Allahabad dismissed the appeal by reiterating that it does not possess the authority to condone delays in filing beyond the 30-day limit. Consequently, the appeal stood dismissed due to the untimely submission.
Conclusion: The decision by the CESTAT in the Jai Maa Durga Engineers case underscores the importance of adhering to statutory time limits for filing appeals. The ruling confirms that the CESTAT does not have the power to condone delays beyond 30 days, emphasizing the strict adherence to procedural requirements for filing appeals. This judgment serves as a reminder of the significance of timely compliance with statutory provisions and limitations in the context of legal proceedings before tribunals and appellate authorities.
FULL TEXT OF THE CESTAT ALLAHABAD ORDER
When the matter was called none appeared on behalf of the Appellant nor any prayer for adjournment has been received. However, we observe from the records that the learned Commissioner (Appeals) has not decided the appeal on merits but have dismissed the appeal before him as time barred. It is his observation that the Appellant has filed the appeal against the Order-in-Original dated 10.01.2017 which was communicated to the Appellant on 17.01.2017 and the Appellant was required to file the appeal on or before 17.03.2017 but the appeal was finally filed only on 15.05.2017 i.e. even after the condonable period of 30 days and accordingly the learned Commissioner (Appeals) had no option but to dismiss the appeal before him.
2. Hon’ble Supreme Court in the case of Singh Enterprises CCE, Jamshedpur 2008 3 SCC 70 = 2008 (221) E.L.T. 163 (S.C) held as under:-
“6.At this juncture, it is relevant to take note of Section 35 of the Act which reads as follows :
“35. 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.
(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.”
7.It is to be noted that the periods “sixty days” and “thirty days” have been substituted for “within three months” and “three months” by Act 14 of 2001, with effect from 11-5- 2001.
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.
9.Learned counsel for the appellant has emphasized on certain decisions, more particularly, I. T. C. ’s case (supra) to contend that the High Court and this Court in appropriate cases condoned the delay on sufficient cause being shown.
10.Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period. From the application for condonation of delay, it appears that the appellant has categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business there was delay does not stand to be reason. I. T. C. ’s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. 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. There will be no order as to costs.”
3. Accordingly the Tribunal is not competent to condone the delay in filing of the appeal before the first Appellate Authority beyond the condonable period, and accordingly the appeal is dismissed.
(Dictated and pronounced in open court)