The Asst. Exe. Engineer, Vs. Commissioner of Central, Excise, - Court Judgment

Excerpt:

.....of tn tobacco co. vs. cce reported in 1998 (28) rlt 73 (cegat) wherein the bench observed that application for condonation of delay was filed under section 35 g of the ce act. in a reference application where also the statute has laid down 30 days of time limit for filing a reference application. the tribunal while considering the case looked into various judgment of the supreme court and decision of the larger bench dealing with the statutory limit fixed in statute and clearly held that the statutory authority has no power to condone the delay where the statute has fixed the time limit itself. this decision of the tribunal has since been confirmed by the apex court. the apex court itself has laid down in several judgements that where the statute laid down in its wisdom any period, then the authority does not have power to enlarge the period. section 35 clearly gives the powers to the commissioners to condone the delay only for three months. therefore he has rightly held that since the appeal has been filed beyond 4 months and 10 days after the initial period, has has no power to condone the delay. in view of the statutory provisions in the act and judgments cited supra we find.....

Judgment:

1. All these four appeals have filed by the Asst. Executive Engineer (Construction and Improvement), T.N.E.B., Theni.

2. The Commissioner (Appeals) has dismissed the appeals of the four appellants as per his order contained in paras 3 and 4 of the impugned order. In paragraph 4 he has stated that there was a delay of 4 months and 10 days in filing the appeal. This is beyond the statutory period of three months. The Ld. DR submitted that the Commissioner has no power to condone the delay beyond the period of 90 days and since the Commissioner (Appeals) is creater of the statute he cannot condone the delay beyond the period of 90 days under section 35 of the Central Excise Act.

3. After hearing both the sides we are of the considered opinion that her is force in the argument of the ld. DR and the Commissioner (Appeals) has no power to condone the delay in filing the appeal beyond the statutory period he relied on the decision rendered i the case of TN Tobacco Co. vs. CCE reported in 1998 (28) RLT 73 (CEGAT) wherein the Bench observed that application for condonation of delay was filed under section 35 G of the CE Act. In a reference application where also the statute has laid down 30 days of time limit for filing a reference application. The Tribunal while considering the case looked into various judgment of the Supreme Court and decision of the Larger Bench dealing with the statutory limit fixed in statute and clearly held that the statutory authority has no power to condone the delay where the statute has fixed the time limit itself. This decision of the Tribunal has since been confirmed by the Apex Court. The Apex Court itself has laid down in several judgements that where the statute laid down in its wisdom any period, then the authority does not have power to enlarge the period. Section 35 clearly gives the powers to the Commissioners to condone the delay only for three months. Therefore he has rightly held that since the appeal has been filed beyond 4 months and 10 days after the initial period, has has no power to condone the delay. In view of the statutory provisions in the Act and judgments cited supra we find no merit in the appeal and hence the Appeals are rejected.