Page 201 - GSTL_23rd April 2020_Vol 35_Part 4

2020 ] IN RE : DEPUTY CONSERVATOR OF FORESTS, BANGALORE 527
Hence, applying the principle of Section 9 of the General Clauses Act to the
CGST Act, the day on which the advance ruling order is communicated/served
on the appellant (which is 4-10-2019 in this case) is to be excluded for the pur-
pose of computing the limitation period. Accordingly, the period of thirty days
to file the appeal in terms of Section 100(2) of the CGST Act commences from 5-
10-2019 and ends on 3-11-2019. Proviso to Section 100(2) of the CGST Act em-
powers the Appellate Authority to allow the appeal to be presented within a fur-
ther period not exceeding thirty days provided sufficient cause is shown. In this
case, the grace period which was available to the appellant for filing the appeal
commenced on 4-11-2019 and ended on 3-12-2019. The appeal in this case, has
been filed on 4-12-2019 which is one day after the expiry of the grace period and
beyond the condonable powers of the Appellate Authority.
13. The question whether this Appellate Authority can entertain an ap-
peal under Section 100 of the CGST Act beyond the condonable period does not
require much debate and has been answered in the negative by the Supreme
Court in the case of Singh Enterprises v. CCE reported in (2008) 3 SCC 70 = 2008
(221) E.L.T. 163 (S.C.). The Supreme Court in the said case interpreted Section 35
of the Central Excise Act, 1944 which is similar to Section 100 of the CGST Act
and examined the question whether the Commissioner (Appeals) has the power
to condone the delay beyond the period of 30 days from the date of expiry of the
period prescribed for filing the statutory appeal and also whether the High
Court, in exercise of the power conferred under Article 226 of the Constitution of
India, can condone the delay. The Hon’ble Supreme Court in Para 8 of its order
held thus :
8. The Commissioner of Central Excise (Appeals) as also the Tribunal be-
ing creatures of Statute are 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 Indian Limitation Act,
1963 (in short the Limitation Act) 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 with-
in 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 present-
ed 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 up to 30 days after the expiry of 60 days
which is the normal period for preferring appeal. Therefore, there is com-
plete 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.
14. Section 5 of the Limitation Act, 1963 gives an opportunity to a liti-
gant to file applications beyond the prescribed period of limitation provided, he
is able to establish that he was prevented by sufficient cause from approaching
GST LAW TIMES  23rd April 2020  321