ABHISHEK AUTO INDUSTRIES Vs. CC (IMPORT)

JUDGEMENT

(1.) IN this appeal the issue arising for consideration is whether Commissioner (Appeals) has the power to condone the delay in filing appeals beyond the period prescribed under Section 128 of the Customs Act, 1962. We heard both the learned counsel for the appellant as well as the learned DR.

(2.) SECTION 128 of the Customs Act, as it stands amended by the Finance Act, 2001 is quoted below:

(3.) THE above would show that an appeal has to be filed before the Commissioner (Appeals) within 60 days from the date of communication of the original order. Before the amendment in 2001 the period prescribed was 30 days. Under the proviso the Commissioner (Appeals) has been given the power to condone the delay for a further period of 30 days. It is not disputed that in this case the appeal was filed beyond the period within which the appeal could be entertained by the Commissioner (Appeals) even by applying the provisions under the proviso. But the learned counsel for the appellant contended that if sufficient cause is shown by the appellant, it will be open to the Commissioner to condone the delay even beyond 30 days provided under the proviso. In support of the above contention he placed reliance on the decision of a Single Judge of the Allahabad High Court in Jaihind Bottling Co. (P) Ltd, v. Commissioner (Appeals), Central Excise Allahabad, 2002 (83) ECC 587. (All) : 2002 (146) ELT 273. In the above decision, the learned Judge has taken the view that Section 35 of the Central Excise Act does not indicate that Section 29(2) and Section 5 of the Limitation Act have been excluded expressly. Therefore, it will be open to the Commissioner (Appeals) to condone the delay beyond the period of 30 days provided under the proviso in appropriate cases.