CESTAT | Correctness of exercise of discretion in accordance with limitation law not under the scrutiny of the forum

Customs, Excise and Service Tax Appellate Tribunal, Chennai: Assessee preferred this appeal before P. Dinesha, J., where assessee was only aggrieved by the dismissal of the appeal by the First Appellate Authority, without condoning the delay in filing the first appeal.

Assesse for explaining delay mentioned that one of the partners of the appellant firm had personal problems. Per contra, it was submitted by the respondent that the delay in filing the first appeal was nine months and the power to condone the delay after the end of 90 days lies only with the Court thus, impugned order should sustain. It was contended by the assessee that sufficient cause was shown and that the Courts had held that a liberal approach should be in condoning of delay. Lest a deliberation is shown for delay the explanation for delay needs to be accepted.

Tribunal was of the view that appeal was filed under Section 129-A of the Customs Act and Section 129-A (5) empowered this forum to condone the delay of any number of days. Section 129 does not authorize this forum to enter the domain of the first appellate authority since the scope of appellate jurisdiction was limited and to assume the jurisdiction of the first appellate authority by this forum was not authorized. It was observed that the first appellate authority had exercised its discretion in accordance with limitation law and thus, this forum could not have judged the correctness of the same. Therefore, this appeal was dismissed. [Vikgnesh Enterprises v. Commissioner (GST), 2019 SCC OnLine CESTAT 55, Order dated 16-04-2019]

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