Statutory Appeal Period Under Customs Act, Appellate Authority Has No Power To Condone Delay: Delhi High Court

The Delhi High Court has held that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days.

The bench of Justice Yashwant Varma and Justice Dharmesh Sharma has relied on the decision of the Supreme Court in the case of Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur & Ors., in which it was held that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days, which is the normal period for preferring an appeal. Therefore, there is a complete exclusion of Section 5 of the Limitation Act.

The issue raised was whether the provisions of Section 5 of the Limitation Act, 1963, could have been resorted to for the purposes of an appeal presented under Section 128 of the Customs Act, 1962.

The Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has taken note of the language employed in that provision to hold that the appeal could have been preferred within the maximum period of 90 days. This is because sub-section (1) of Section 128 of the Act enjoins that an appeal may be presented within 60 days. The Proviso thereto confers discretion on the Commissioner to extend the period of limitation by a period of 30 days, provided sufficient cause is shown.

The CESTAT has rested its conclusions on the judgment rendered by the Supreme Court in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur & Ors.

The appellant/assessee challenged the decision of the CESTAT.

The court, while dismissing the petition, held that the Commissioner of Central Excise (Appeals) was also the

Tribunals, being creatures of statute, are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963, can be used to condone 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.

Counsel For Appellant: Sholab Arora

Counsel For Respondent: Satish Kumar

Case Title: Shambhu Synthetics Pvt. Ltd Versus Commissioner Of Customs

Citation: 2023 LiveLaw (Del) 944

Case No.: CUSAA 28/2021

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