Indica Laboratories vs Commissioner of Central Excise

K.S. Radhakrishnan, C.J.—The common question raised in these appeals is whether Commissioner of Central Excise (Appeals) was justified in dismissing both the appeals on the ground of delay, holding that he has no power to condone delay if the appeals are filed beyond the period prescribed under the Central Excise Act, 1944.

Appellants preferred appeals against order of the Deputy Commissioner of Central Excise, Ahmedabad-II, before the Commissioner (Appeals) on 18.2.2008. Impugned orders were received by the appellants on 17.8.2007. Under the provisions of Section 35 of the Central Excise Act, 1944, appeals against any order passed by the Central Excise Officer lower in rank than a Commissioner of Central Excise is required to be filed before the Commissioner (Appeals) within sixty days from the date of communication of such order. Commissioner (Appeals) however, if satisfied, can condone delay of further thirty days period in filing the appeal. Appeals were required to be filed by 16.10.2008, but appeals were filed only on 18.2.2008, resulting delay of 124 days over the stipulated period. Under the provisions of Section 35 of the Central Excise Act, 1944, Commissioner (Appeals) is not empowered to condone delay beyond further thirty days. In view of the above situation, both appeals were dismissed. Matter was carried before the Tribunal. Tribunal also dismissed both the appeals, against which these appeals have been preferred.

The issue raised in this case is no more res-integra. Power of the Commissioner to condone delay under the provisions of Central Excise Act, came to be considered by the apex Court in Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, . The apex Court held as follows:

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 Delhi High Court had, in an earlier decision, taken the same view in Raja Mechanical Company Pvt. Ltd. Vs. Commissioner of Central Excise, Kerala High Court while dealing with the provisions of the Customs Act and also Motor Transport Workers'' Welfare Fund Act, 1985, took the same view in District Executive Officer Vs. Abel, and Samrat Exports and Importers Vs. Commr. of Customs and Central Excise (Appeals),

Above being the legal position, we find no error in the decision taken by the Tribunal. Appeals lack merit and they are accordingly dismissed.