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Wrong mentioning of period of limitation in Preamble of adjudication Order cannot override statutory mandate: CESTAT

By TIOL News Service

CHENNAI, MAR 09, 2016: THE Commissioner (Appeals) dismissed the appeal on the ground that the appeal was filed beyond the condonable period under Section 85 of the Finance Act, 1994 as he has no power to condone the delay beyond the condonable period of limitation.

The Appellant contended that as per the Preamble of the adjudication Order, the appeal should be filed within 3 months from the date of receipt of the order under Section 85 of the Finance Act, 1994. So the appellant should not be punished for the wrong act on the part of Revenue.

On behalf of the revenue, it was contended that the Commissioner (Appeals) has no power to condone The delay beyond the condonable period of limitation under Section 35 of the Central Excise Act, 1994 which is pari materia to Section 85 of the Finance Act, 1994. The Tribunal consistently held that on the plea of wrong mentioning of period of filling appeal of three months in preamble of the adjudication order, delay cannot be condoned by overriding the statutory limit of filling the appeal.

After hearing both sides, the Tribunal held:

+ The Supreme Court clearly held that the Commissioner (Appeals) has no power to condone the delay after expiry of 30 days period as provided under Section 85 of the Finance Act, 1994. We agree with the submission of the Revenue that there is no power of Commissioner (Appeals) to condone the delay. The wrong mentioning of the period of limitation in the preamble cannot override the statutory provision. We also notice that the Tribunal in the case of Raghav Industries and Sagar Enterprises - 2009-TIOL-1020-CESTAT-MAD dismissed the appeal on the similar ground.

(See 2016-TIOL-568-CESTAT-MAD)


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