The Commissioner (Appeals) lacks the jurisdiction to condone delay beyond the statutory limit of 60 days plus an additional 30 days under Section 128(1) of the Customs Act, 1962, and Section 5 of the Limitation Act does not apply to override this limit.

JUSTICE DILIP GUPTA:

This appeal seeks to assail the order dated 20.06.2025 passed by the Commissioner (Appeals) by which the appeal filed by the appellant before the Commissioner (Appeals) to challenge the order dated 26.07.2023 passed by the adjudicating authority has dismissed for the reason that it was filed beyond the time period prescribed under section 128(1) of the Customs Act, 1962¹the Customs Act

2. A perusal of section 128(1) of the Customs Act shows that any person aggrieved by any decision or order passed under the Customs Act by an officer of customs lower in rank than the Commissioner of Customs may appeal to the Commissioner (Appeals) within 60 days from the date of communication of such decision or order. The proviso, however, provides 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 60 days, allow the appeal to be presented within a further period of 30 days.

3. In the instant case, the Commissioner (Appeals) took up for consideration the delay condonation application filed by the appellant with the appeal. While deciding the condonation of delay application, the Commissioner (Appeals) specifically noted that the order of the adjudicating authority was communicated to the appellant on the same date i.e. 26.07.2023. In such circumstances, the Commissioner (Appeals) noted that in terms of section 128 of the Customs Act, the appeal was required to be filed within 60 days from the date of communication of the order which would expire on 24.09.2023, but the appeal was filed on 16.07.2024, even beyond the extended period 30 days after the expiry of normal period of 60 days. Learned counsel for the appellant submitted that the delay should be condoned as the adjudicating authority violated the principles of natural justice as neither the show cause notice was served upon the appellant nor any opportunity of personal hearing was provided to the appellant by the adjudicating authority.

4. Shri Krishna Kant Bashist, learned authorized representative appearing for the department, however, submitted that what is required to be seen in this appeal is whether the Commissioner (Appeals) was justified in dismissing the appeal that was filed beyond the statuary time limit provided in section 128(1) of the Customs Act and the issues raised by the appellant could have been considered by the Commissioner (Appeals) only if a competent appeal had been filed by the appellant.

5. We find force in the submissions advanced by the learned authorized representative appearing for the department. Section 128(1) of the Customs Act clearly prescribes that the appeal has to be filed within 60 days from the date of communication of the order. However, the Commissioner (Appeals) has the power to condone the further delay of 30 days provided he is satisfied that a sufficient cause has been shown by the appellant. It is therefore, clear that the Commissioner (Appeals) does not have any power to condone any delay after the expiry of extended period of limitation of 30 days. In this view of the matter, the Commissioner (Appeals) was justified in dismissing the appeal.

6. The aforesaid view also finds support from the judgment of the Supreme Court Singh Enterprises versus Commissioner of C.EX., Jamshedpur , 2008(221) E.L.T.163(SC). The Supreme Court examined the provisions of section 35 of the Central Excise Act, 1944 which are para materia to section 128(1) of the Customs Act. In this case, the appeal was filed before the Commissioner (Appeals) after expiry of the normal period of 60 days and the ext