Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Unknown on 21 June, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT-II
Application No.ST/COD/1249/09; ST/S/1787/09
Appeal No.ST/359/09
Arising out of OIA No.Commr(A)/07/VDR-I/2009, dt.27.01.09
Passed by: Commissioner of Central Excise & Customs (Appeals), Vadodara
For approval and signature:
Honble Mrs. Archana Wadhwa, Member (Judicial)
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
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 of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant/s M/s. Skypak Services Specialists Ltd.
Represented by None
Vs.
Respondent/s CCE Vadodara
Represented by Shri R.S. Sarova (JDR) CORAM:
MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing:21.06.10 Date of Decision:21.06.10 ORDER No. /WZB/AHD/2010 Per: Archana Wadhwa:
Nobody appeared for the appellant. We also note that the appellants were unrepresented on the last occasion when the matter was adjourned to today. We have accordingly heard learned JDR and have gone through the impugned order of Commissioner (Appeals). We find that there is a delay of around six months in filing the present appeal, which stands contributed to delay in communication of the order by the branch office of the appellant to their head office. Though we do not appreciate the above reason given by the appellant but in the interest of justice we condone the delay and proceed to decide the stay petition as also appeal.
2. We find that Commissioner (Appeals) has rejected the appeal filed by the appellant on the ground of time bar in as much as there was a delay of 11 months and 15 days in filing the appeal before him. The appellate authority has observed that he does not have powers and jurisdiction to condone the delay beyond the period of 90 days. He has relied upon the various decisions, as discussed in para 5.2 of his order.
5.2 The legal position on the above mentioned issue has been setted in the following decisions in respect of central excise that the Commissioner (Appeals) has no power to condone the delay beyond the extended period of thirty days.
(i) The Honble Delhi High Court in the case of M.R. Tobacco Pvt. Ltd. Vs. UOI 2004 (178) ELT 0137 (Del.) held as under:
Power of Commissioner (Appeals) Limitation The Commissioner (Appeals) had no power to condone the delay beyond the further period of 30 days from the expiry of time within which the appeal ought to have been filed. Thus delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he cannot entertain the appeal itself. Petition is rejected.
The Honble Apex Court has also upheld the above judgment of the Honble Delhi Court by rejecting the appeal filed by M/s. M.R. Tobacco as reported at Page A-115 Vol.213 Part-3 (16th July, 2007) ELT.)
(ii) The Honble Bombay High Court in the case Navinon Ltd. Vs. UOI 2008 (205) ELT 71 (Bom.) wherein it is held as under:
Appeal Limitation - Commissioner (Appeals) office is neither a court nor has trappings thereof - He is an executive authority which acts quasi-judicially while hearing appeals Provisions of Limitation Act, 1963 so far as limitation period of appeal are concerned, are not applicable Section 35 of Central Excise Act, 1944.
Appeal Limitation Sufficient cause for extension Express provision of Section 35 of Central Excise Act, 1944 put a ceiling on powers of the Commissioner (Appeals) even on production of proof of sufficient cause In view of that, general provision of Section 5 of Limitation Act, 1963 shall be deemed to be excluded Appeal preferred beyond 30 days of expiry of statutory period of 60 days held to be time barred.
(iii) The Honble Tribunal in the case of Modern Syntex (I) Ltd Vs. CCE Jaipur 2004 (165) ELT 285 (Tri. Del.), by following the rulings of the Supreme Court in the case of Parson Tools and Plants and the Bombay High Courts in the case of N.B. Golangada Vs. UOI held that that the lower appellate authority had no power to condone any delay of appeal in excess of thirty days prescribed under the proviso to Section 35(1) of the Central Excise Act.
The ratio of the above said decisions though given in relation to central excise cases are equally applicable to the present case as the provisions relating to appeal in central excise and in service tax are pari materia.
3. In as much as the law is settled, we find no reasons to interfere in the impugned order of Commissioner (Appeals). Accordingly the appeal filed by the appellant is rejected and COD, stay petition as also the appeal get disposed off in above manner.
(Dictated & Pronounced in Court)
(B.S.V. Murthy) (Archana Wadhwa)
Member (Technical) Member (Judicial)
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