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CASE NO.: Appeal (civil)  5949 of 2007

PETITIONER: M/s Singh Enterprises

RESPONDENT: Commissioner of Central Excise,Jamshedpur and Ors.

DATE OF JUDGMENT: 14/12/2007

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.4720 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Jharkhand High Court dismissing the  Writ Petition filed by the appellant. Before the High Court  appellant had challenged the order passed by the  Commissioner (Appeals), Central Excise and Service Tax,  Ranchi  dismissing the appeal filed by the appellant under  Section 35 of the Central Excise Act, 1944 (in short the \021Act\022).  The said order was challenged before the High Court by filing a  Writ Petition. The Commissioner had dismissed the appeal  only on the ground that it was filed after 21 months of the  date of service of the original order and the appellate authority  did not have power to condone the delay beyond the period of  30 days from the date of expiry of period of 60 days prescribed  for filing the statutory appeal.

3.      The Division Bench noted that since the Commissioner  had no power of condonation beyond the statutorily prescribed  period, therefore, the writ petition was without merit. Before  the High Court reliance was placed on a decision of this Court  in I.T.C. Ltd. v. Union of India (1998 (8) SCC 610) to contend  that the High Court had the power to condone the delay. This  stand was not accepted by the High Court.

4.      In support of the appeal, learned counsel for the  appellant submitted that even if it is conceded for the sake of  argument that the Commissioner had no power to condone the  delay, yet the High Court in exercise of power conferred under  Article 226 of the Constitution of India, 1950 (in short the  \021Constitution\022) can condone the delay. It is stated that the  power in this regard is untrammeled by any statutory  provision.  

5.      Learned counsel for the respondents on the other hand  supported the orders of the Commissioner and the High Court.

6.      At this juncture, it is relevant to take note of Section 35  of the Act which reads as follows:

\02335. APPEALS TO COMMISSIONER  (APPEALS).    

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(1) Any person aggrieved by any decision or  order passed under this Act by a Central  Excise Officer, lower in rank than a  Commissioner of Central Excise, may appeal to  the Commissioner of Central Excise (Appeals)  [hereafter in this Chapter referred to as the  Commissioner (Appeals)] within sixty days    from the date of the communication to him of  such decision or order :      Provided 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 sixty  days, allow it to be presented within a further  period of thirty days.    (2) Every appeal under this section shall be in  the prescribed form and shall be verified in the  prescribed manner.\024  

7.      It is to be noted that the periods \023sixty days\024 and \023thirty  days\024 have been substituted for \023within three months\024 and  \023three months\024 by Act 14 of 2001, with effect from 11.5.2001.     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 \021Limitation Act\022) 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.  

9.      Learned counsel for the appellant has emphasized on  certain decisions, more particularly, I.T.C.\022s case (supra) to  contend that the High Court and this Court in appropriate  cases condoned the delay on sufficient cause being shown.   

10.     Sufficient cause is an expression which is found in  various statutes. It essentially means as adequate or enough.  There cannot be any straitjacket formula for accepting or  rejecting the explanation furnished for delay caused in taking  steps. In the instant case, the explanation offered for the

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abnormal delay of nearly 20 months is that the appellant  concern was practically closed after 1998 and it was only  opened for some short period. From the application for  condonation of delay, it appears that the appellant has  categorically accepted that on receipt of order the same was  immediately handed over to the consultant for filing an appeal.  If that is so, the plea that because of lack of experience in  business there was delay does not stand to be reason.  I.T.C.\022s  case (supra) 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.