Delay Beyond 90 Days Not Condonable Under Customs Act: CESTAT Mumbai Reiterates

The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) on 17 April, held that the Commissioner (Appeals) cannot condone delay in filing an appeal under Section 128(1) of the Customs Act beyond the original 60-day limitation period and the additional condonable 30-day period.

A Bench comprising President Justice Dilip Gupta and Technical Member P. Anjani Kumar dismissed the appeals filed by Parekh Cranes and Machinery and its partner, and upheld the confiscation and penalty orders as barred by limitation. It held:

“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.”

In the present case, the adjudication order dated 16 May 2024 was served on the Parekh Cranes and Machinery and another, the appellants, on 22 May 2024. However, it filed the appeals only on 22 August 2024, i.e., two days beyond the total outer limit of 90 days prescribed under law.

The appellants sought condonation on the ground that one partner had travelled abroad during substantial portions of May and June 2024. Subsequently he suffered health issues, and that time was consumed in consulting professionals and finalising engagement terms with an advocate.

The Bench rejected these explanations as vague and unsupported by specific dates. It also noted that the firm had another partner who could have authorised filing of the appeal. The medical prescription relied upon also did not bear any date.

Reiterating that statutory appellate authorities are creatures of statute, the Tribunal held that they can exercise only such powers as are expressly conferred by law. Once the maximum permissible period expires, no equitable or discretionary condonation can be granted.

The Tribunal rejected reliance on the Supreme Court ruling in Saral Wire Craft Pvt Ltd., noting that the said case involved improper personal service by an Inspector, whereas in the present case the order had been sent through speed post and was admittedly received in the office of the appellant firm.

Relying on Singh Enterprises v. Commissioner of Central Excise, the Tribunal held that Section 5 of the Limitation Act does not apply where the statute itself prescribes a fixed condonable period.

Accordingly, the CESTAT upheld the order of the Commissioner (Appeals) and dismissed both appeals as barred by limitation.

Appearance for the Appellants: Shri Chirag Shetty, Advocate

Appearance for the Respondent: Shri Dinesh Nanal, Authorized Representative for the Respondent