- (1.) The subject matter of challenge in this writ petition is an order dated 17th April, 2012 passed by the Customs, Excise and Service Tax Appellate Tribunal dismissing the appeal for the following reasons : " We find that the ld. Commissioner (Appeals) has dismissed this appeal on the ground of filing of appeal after seven months and twenty six days from the date of receipt of order-in-original. The appeal before the Commissioner (Appeals) is required to be filed within three months which is extendable to another three months. Undisputedly, the appeal is filed beyond the time limit (three+three months) prescribed under Section 85 of the Finance Act, l994. There is no provision of law to condone the delay beyond the aforesaid period. In these circumstances, the appeal is liable to be dismissed. Accordingly, the appeal is dismissed. Stay petition is also disposed of."
(2.) The subject matter of challenge before the learned Tribunal was an order dated 17th November, 2009 passed by the Commissioner, Central Excise (Appeals) refusing to admit the appeal on the ground of delay of seven months and twenty-six days. The Commissioner had expressed the following opinion: 3. I have considered the matter carefully. I find that Section 85(3) of the Finance Act, l994 reads as under : "An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority relating to Service Tax, interest or penalty under this chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months." From the above it is clear that Commissioner (Appeal) has no power to condone if the delay in submission of appeal goes beyond three months from the date of normal submission of appeal within three months from the date of receipt of order-in-original. In the instant case the appeals are filed after 7 months & 26 days from the date of receipt of order-in-original. Hence, the delay cannot be condoned. 4. The appeals are, therefore, dismissed."
(3.) Mr. Mitra, learned Senior Advocate, appearing in support of the writ petition, drew our attention to the judgement and order in the case of ITC Ltd. & anr. Vs. Union of India & Ors., 1998 8 SCC 610, wherein the Apex Court in an identical case allowed the appeal to be filed within a month from the date of the order passed by the Supreme Court. Mr. Mitra, however, very fairly also drew our attention to the judgement in the case of Singh Enterprises vs. Commissioner of Central Excise Jamshedpur & Ors., 2008 3 SCC 70, wherein the following views were expressed : " ITC case was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs".;