O R D E R

Heard Mr.Nedunchezhiyan S., learned counsel for the petitioner and Ms.Geetha, learned counsel for Mr.RajnishPathiyil, learned Senior Panel Counsel.

2. The challenge is to an order of the first appellate authority dated

11.11.2016 on the ground that the appeal has been filed beyond a period of statutory limitation. The Finance Act, 1994 provides for 60 days for filing of an appeal with a provision for condonation of delay up to 30 days.

3. In the present case, the appeal has been filed with a delay of more than six months. The reasoning adduced by the first appellate authority in rejecting the appeal is set out below:

6.In the instant case, the Order-in-Original dated 11.11.2016 was reportedly received by the appellant on 24.11.2016. But the appellant have filed this appeal only on 19.07.2017 after a delay of more than six months. The appellant have also filed condonation of delay in filing this appeal stating that they have filed this appeal along with requisite on after getting approval from the higher authorities; for the reasons stated above, they have requested to condone the delay in filing the appeal for 174 days. In this regard, it may be noted that in terms of the above shown provisios of law, Commissioner (appeals) can condone the delay in filing the appeal beyond two months only for a further period of one month provided, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of two months. Counting the above factor, in the instant case, the appeal should have been filed on or before 23.02.2017 by including the condonation period, whereas the appellant have filed this appeal only on 19.07.2017 which is beyond the period as prescribed under the provisions of Section 85(3A) of the Finance Act, 1994.

7. From the above, it is clear the appellant have filed the appeal well after the condonable period as provided under the law. The Hon'ble Supreme Court of India in the case of M/s. Singh Enterprises Vs. Commissioner of Central Excise., Jamshedpur [2008 (221) E.L.T. 163 (SC)] has held that Commissioner (Appeals) has no power to condone dely beyond the statutory period of thirty days prescribed under the law. The higher appellate forums have also consistently held in a number of cases that Commissioner (Appeals) has no power to condone delay beyond the statutory period. In the case of M/s.Sri Vishnu Process Vs. CCE, Bangalore [2006 (205) E.L.T. 325 (Tri.- Bang.)[ and in the case of M/s Abhishek Auto Industries V.CC, Mumbai [2003 (160) ELT 695 (Tri.-Del)] similar view has been taken by the Hon'ble Tribunals. Therefore, lawfully, if the statute provides for a period of limitation and further maximum period of limitation for which delay can be condoned, the authority cannot extend the same. In view of the above, it is clear that the appeal filed by the appellant is time barred and liable for rejection. Therefore, the appeal is liable for rejection prima facie without going into the merits of the case.

Accordingly, I pass the following order:

4. I find no infirmity in law in the above reasoning. Had there been some justification provided by the petitioner for filing the appeal belatedly, this Court could well have considered the same in the exercise of extra-ordinary jurisdiction, but there is no justification, let alone justifiable explanation provided.

5. Hence, the impugned order is confirmed. This writ petition is dismissed. Connected miscellaneous petition is closed. No costs.

24.06.2022 Index : Yes/No Speaking Order ska To

1.The Commissioner(Appeals)

Office of Commissioner of GST and Central Excise (Appeals)

Coimbatore Circuit Office @ Salem Commissionerate No. 1, Foulkes Compound, Anai Road Salem-636 001

2.The Deputy Commissioner of Central Excise O/o. The Deputy Commissioner of Central Excise Service Tax Cell, Hosur - I Division, Thally Road, Hosur – 635109, Krishnagiri Dist.

3.The Assistant Commissioner of Central Excise Hosur I Division, Thally Road Hosur – 635