BISWANATH SOMADDER,J. - (1.) The issue sought to be raised in the instant writ petition is whether the impugned order in appeal passed by the Commissioner of Central Excise (Appeals-II), Kolkata, could be subjected to judicial review under Article 226 of the Constitution of India and interfered with.
(2.) Even a bare perusal of the order reveals that the statutory appellate authority, while relying on Section 35 of the Central Excise Act, 1944, has observed to the effect that the total time taken for filing of the appeal was 200 days, and as such, the delay in filing of the appeal by the appellant (being the writ petitioner herein) was much beyond the condonation period of 30 days after expiry of normal 60 days.
(3.) This issue is no more res integra in view of several pronouncements of the Hon'ble Supreme Court. In Singh Enterprises v. Commissioner of C. EX., Jamshedpur reported in 2008 (221) E.L.T. 163 (S.C.) , it has been observed by the Supreme Court in Paragraph 8 as follows:- "8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian 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 the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period.";