IMPORTANT POINT
The appellate authority under the Finance Act, 1994, has no jurisdiction to condone delays beyond the statutory limit, and special statutes exclude the application of the Limitation Act.

JUDGMENT :

Shekhar B. Saraf, J.

1. Heard Ms. Riya Soni, learned counsel appearing on behalf of the petitioner and Mr. Parv Agarwal, learned counsel appearing on behalf of the respondents.

2. This is a writ petition under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by the order dated September 20, 2023 passed by the appellate authority that is the Commissioner of Central Excise (Appeals), Noida under Section 85 of the Finance Act, 1994 (hereinafter referred to as the ‘Finance Act’).

3. By the aforesaid order, the appellate authority had dismissed the appeal filed by the petitioner on the ground that the same was time barred as it was filed beyond the period of 85 days. In paragraphs 6.1 to 6.7 of the aforesaid order, the appellate authority has clearly pointed out that the petitioner has received the order in original on January 17, 2023 whereas the appeal was filed on June 9, 2023, that is, after a delay of 85 days beyond the limitation prescribed under the Act.

4. Upon a perusal of the memo of appeal filed by the petitioner, it is clear that the order was communicated on January 17, 2023, as admitted by the petitioner itself. The petitioner has explained the delay stating that the delay was caused due to the ignorance of authorised representative/legal counsel and also because the petitioner suffered with medical emergency caused by acute viral hepatitis between the period April 10, 2023 to May 31, 2023. In addition to the above explanation, the petitioner has relied on several judgments of the High Courts including a judgment of this Court in Jai Hind Bottling Company (P) Ltd. vs. Commissioner (Appeals) Central Excise, Allahabad reported in 2002(146) ELT 273 (All.) and submitted that in extra ordinary circumstances, the writ court has the power to condone the delay. The petitioner has also relied upon a judgment of the Delhi High Court in Pioneer Corporation v. Union of India reported in 2016(340) ELT 63 (Del) to argue that in exceptional circumstances and in the rarest of rare cases, the writ court has the power to condone the delay.

5. However, as pointed out in the appellate order, which is under challenge before this Court, the Hon’ble Supreme Court in several judgments including the judgment in Singh Enterprises vs. C.C.E., Jamshedpur reported in 2008(221) ELT 163 (S.C.) has held that under Section 35 of the Central Excise Act, the delay cannot be condoned beyond what is prescribed under the Central Excise Act as the language of the said section specifically provides for condonation of delay of additional 30 days only. Section 85 of the Act is in pari materia with the above section. One may examine the Supreme Court judgment in Singh Enterprises' (supra) wherein the Supreme Court held as follows:-

"8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the 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