Judgment K.M. Thaker, J.—Heard Ms. Jyoti Mehta learned Advocate for Mr. Rawal learned Advocate for petitioner and Mrs. Shaikh learned Advocate for respondent. 2. Rule. Ms. Jyoti Mehta learned Advocate for Mr. Rawal learned Advocate for the petitioner waives service of rule and Mrs. Shaikh learned Advocate waives service of notice of rule for the respondent. At the request and with the consent of the learned advocates, this petition is taken up for final disposal today. 3. In this petition the petitioner has brought under challenge order dated 29.6.2007 passed by the controlling authority in gratuity Application No. 16 of 2007 and has also brought under challenge order dated 19.2.2008 passed by the appellate authority in gratuity Appeal No. 57 of 2008. By the said order the appellate authority has rejected appeal and confirmed the order passed by the controlling authority. 4. By the impugned order dated 29.6.2007 the controlling authority came to the conclusion that the applicant viz. present respondent was entitled to receive Rs. 3,50,000/- towards gratuity whereas he was paid only Rs. 3,14,091/- towards gratuity by present petitioner. The controlling authority also came to the conclusion that the said amount of Rs. 3,14,091/- was paid after delay of about 9 months and 25 days. Having arrived at such conclusion the controlling authority passed aforesaid order dated 29.6.2007 directing present petitioner to pay Rs. 35,909/- difference towards gratuity amount and to also pay the said amount with interest at the rate of 10% per annum 5. Upon being aggrieved by said order of controlling authority, petitioner approached appellate authority. There was delay in filing appeal. The delay caused in filing appeal was more than the period which the appellate authority could have condoned under the provisions of Section 7(7) Payment of Gratuity Act, 1972 and that therefore the appellate authority rejected the appeal as time barred. Aggrieved by said orders the petitioner is before this Court. 6. Ms. Jyoti Mehta learned Advocate for Mr. Raval learned Advocate for the petitioner has appeared and Mrs. Shaikh learned Advocate for the respondent has appeared. 7. Ms. Jyoti Mehta learned Advocate for the petitioner submitted that appellate authority has not condoned delay though reasonable cause for condoning delay was made out by the petitioner corporation. She submitted that appellate authority ought to have condoned delay and entertain the appeal. 8. On the other hand Mrs. Shaikh learned Advocate for the respondent has appeared. 7. Ms. Jyoti Mehta learned Advocate for the petitioner submitted that appellate authority has not condoned delay though reasonable cause for condoning delay was made out by the petitioner corporation. She submitted that appellate authority ought to have condoned delay and entertain the appeal. 8. On the other hand Mrs. Shaikh learned Advocate for the respondent submitted that the power of appellate authority to condone delay is limited and has been circumscribed by the provisions of the Act and that therefore, appellate authority could not have condoned delay for period beyond the permissible and prescribed limit i.e. beyond maximum permissible period of 60 days. 9. In view of the aforesaid submission it is appropriate to take into account the provisions under Section 7(7) of the Payment of Gratuity Act, 1972 which reads as under: 7. Determination of the amount of gratuity:— (7) Any person aggrieved by an order under Sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf; Provided that the appropriate Government or the appellant authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days: [Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under Sub-section (4), or deposits with the appellant authority such amount.” 10. It can be seen from the aforesaid provisions that the appeal is required to be preferred within period of sixty days from the date of the receipt of the order passed by the controlling authority. Any appeal filed after period of 60 days would be beyond prescribed time limit, hence delayed and time barred. 11. However, the appellate authority has been conferred with power to condone such delay occurred in preferring/filing appeal. But such power is circumscribed and it is restricted to period of further sixty days. Any appeal filed after period of 60 days would be beyond prescribed time limit, hence delayed and time barred. 11. However, the appellate authority has been conferred with power to condone such delay occurred in preferring/filing appeal. But such power is circumscribed and it is restricted to period of further sixty days. Meaning thereby the appellate authority cannot condone delay of more than sixty days occurred after the outer limit prescribed by statute for filing appeal, is exhausted. Consequently, appellate authority cannot condone delay of more than 60 days after expiry of prescribed period of limitation. 12. In present case there is no dispute that appeal was filed after delay of more than sixty days beyond the prescribed period of limitation. Differently put the appeal was filed after more than 120 days (60 days being the prescribed period of limitations and delay of other 60 days which the appellate authority can condone), from the date of the order by controlling authority. 13. In that view of the matter appellate authority, while exercising power under Section 7(7) of the Act, could not have condoned delay for more than sixty days. 14. In this regard reference can be made to the judgement of Hon’ble Division Bench in the case between D.R. Industries Ltd. and Anr. vs. Union of India and Ors. reported in 2008 (3) GLH 662 wherein Hon’ble Division Bench, while considering the provisions under Central Excise Act 1944 wherein the appellate authority is conferred with power to condone delay for maximum thirty days after expiry of statutory period of sixty days for preferring appeal, has, in Paragraph Nos. 18 and 19, observed and held that:— 18.We, therefore, do not find any merit in any of the contentions raised on behalf of the petitioners for challenging the constitutional validity of the proviso to Sub-section (1) of Section 35 of the Central Excise Act, 1944 in so far as the Parliament has provided for the limitation period of 60 days for filing an appeal before the Commissioner (Appeals) and in so far as the power to condone the delay conferred on the Commissioner (Appeals) is only for a period of 30 days after expiry of the limitation period of 60 days. 19. 19. As regards the contention that there may be extra-ordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extra-ordinary cases where an assessee can show extra-ordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this Court. Hence, in cases where the assessees have suffered gross injustice and they could not file appeals before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order-in-original on account of circumstances beyond their control, such assessees can invoke the powers of this Court under Article 226 of the Constitution but, of course, not as a matter of right.” (emphasis supplied) 15. Ms. Jyoti Mehta learned Advocate for Mr. Raval learned Advocate for the petitioner has relied upon the judgement by learned Single Judge in case between Mahagujarat Medical Society vs. Deputy Labour Commissioner reported in 2004(0) GLHEL-HC 207138 wherein the Court (Coram: Hon’ble Mr. Justice Jayant Patel) condoned delay on condition that the petitioner shall pay cost to the tune of Rs. 3500/-. Ms. Jyoti Mehta learned Advocate for Mr. Raval learned Advocate for the petitioner has also relied upon judgement of the Hon’ble Supreme Court in case between State Bank of India and Others vs. Sree Rayalaseema Paper Mills Ltd., reported in 2004 (13)SCC 769 wherein Hon’ble Supreme Court condoned delay of five days. The judgement of the Hon’ble Supreme Court would not, in facts of the present case help the petitioner inasmuch as in the said case issue was regarding calculation of period of limitation/delay and regarding the starting point for calculating limitation/delay. Further more, the delay involved in the said case was of only five days, if at all the contention of the appellant before the Hon’ble Supreme Court was not to be accepted. Hence, the said judgement does not help the petitioner in facts of the present case. 16. Further more, the delay involved in the said case was of only five days, if at all the contention of the appellant before the Hon’ble Supreme Court was not to be accepted. Hence, the said judgement does not help the petitioner in facts of the present case. 16. However, the provisions under the Act would not, as held by the Hon’ble Division Bench in the case between Mahagujarat Medical Society (Supra) restrict or limit the power of this Court in writ jurisdiction and this Court, upon being satisfied about the facts and circumstances of the case can, in exceptional circumstances, condone the delay and direct appellate authority to hear and decide the appeal on merits. 17. It has been held by Hon’ble Division Bench also in the aforesaid judgment that:— “9. We have heard the learned Counsel for the parties and given anxious consideration to the rival submissions. As per the settled legal position, right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in a judicial or quasi-judicial adjudication. The right to appeal is a creature of the statute and, therefore, such right can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself, following the rules of natural justice, without any right of appeal would be violative of any constitutional or statutory right. If the statute gives a right to appeal upon certain conditions, it is upon fulfillment of those conditions that the right becomes vested and available to the appellant [Vijay Prakash Mehta, 1988 (4) SCC 402 ]. Where a right of appeal is provided under an Act, limitation thereof must also be provided in the Act. Accordingly, when the Parliament confers the right of appeal under Section 35(1) of the Central Excise Act, the Parliament also has the power to restrict the right by providing for a specific period of limitation. The Parliament also has the equal power to provide for the maximum period of condonable delay. 10. Accordingly, when the Parliament confers the right of appeal under Section 35(1) of the Central Excise Act, the Parliament also has the power to restrict the right by providing for a specific period of limitation. The Parliament also has the equal power to provide for the maximum period of condonable delay. 10. While enacting the Limitation Act, 1963 providing for limitation of suits and other proceedings, the Parliament provided in Section 5 of the said Act that on the appellant satisfying the Court that there was sufficient cause for not preferring the appeal or application within a period of limitation as prescribed in the Act, the Court will have the power to condone the delay. Sub-section (2) of Section 29 of the Limitation Act also provides that where any civil or local law prescribes a period of limitation different from the period prescribed by the schedule in the Limitation Act, the provisions contained in Sections 4 to 24 of the Limitation Act shall apply only in so far as and only to the extent to which they are not expressly excluded by the civil or local law. Thus, applicability of the provisions of Section 5 of the Limitation Act enacted by Parliament may as well be curtailed by another enactment made by the Parliament. It is, therefore, open to Parliament to provide only a limited period of condonable delay while conferring a right of appeal on an assessee aggrieved by an order of an adjudicating authority below the Commissioner of Central Excise & Customs. 11. We may also refer to the decision of the Delhi High Court in M.R. Tobacco Pvt. Ltd. vs. Union of India, 2004 (178) ELT 137, wherein a Division Bench of the Court reiterated its view in M/s Delta Impex vs. Commissioner of Customs, 2004 (173) ELT 449 that the Commissioner (Appeals) has no power to condone the delay beyond a further period of 30 days from the expiry of the time within which the appeal ought to have been filed, that the Central Excise Act, 1944 is a complete code and the provisions of Section 35 clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to entertain any application for condonation of delay or to entertain the appeal itself. The above decision of the Delhi High Court in M.R. Tobacco case was challenged before the Hon’ble Supreme Court. The Apex Court dismissed SLP (Civil) No. 20552 of 2004 in the following terms :— “In view of the fact that the provisions of the Limitation Act, 1963 have no application in relation to proceedings under the Central Excise Act and furthermore in view of the fact that the Act as a special statute deals with the matter relating to limitation, the High Court cannot be said to have committed any error in following the judgment of this Court in India House vs. Kishan N. Lalwani, 2003 (9) SCC 393 . We find no merit in this petition. The special leave petition is dismissed.” In view of the aforesaid decision, there could be no room for doubt that the maximum time limit to file an appeal before the Commissioner (Appeals) under Section 35 of the Central Excise Act is 60 + 30 days i.e. 90 days. The Commissioner has no power to condone the delay beyond the further period of 30 days from the expiry of the limitation period of 60 days within which the appeal ought to have been filed.” 18. Thus so far as the order of appellate authority is concerned, no fault with the said order can be found. The appellate authority could not have condoned delay beyond 60 days inasmuch as the authority’s power is circumscribed by the provisions of the statute. 19. However, considering the facts and circumstances of the present case and upon being satisfied about the justification for condoning delay, more particularly in light of the fact that the petitioner has already paid Rs. 3,14,000/- towards gratuity and the dispute is only with regard to difference, this Court is of the view that the delay caused in preferring appeal deserves to be condoned but at the same time respondent ought to be compensated. The respondent has already paid an amount of Rs. 3,14,000/- toward gratuity. 3,14,000/- towards gratuity and the dispute is only with regard to difference, this Court is of the view that the delay caused in preferring appeal deserves to be condoned but at the same time respondent ought to be compensated. The respondent has already paid an amount of Rs. 3,14,000/- toward gratuity. Hence, this is not the case where no amount towards gratuity has been paid to the appellant, dispute is only with regard to the difference and it is the case of the appellant corporation that as per its calculation, the respondent is entitled for Rs. 3,14,000/- only. Hence, that appears to be reasonable and arguable case in favour of the respondent, which deserves to be examined by the appellate authority on merit. 20. Under the circumstances, the order of the appellate authority is set aside on the condition that the petitioner shall pay Rs. 3,500/- towards cost to the respondent. Such an amount shall be paid to the respondent within 15 days. The petitioner shall also deposit as required by provision under the Act the decreetal amount with the controlling authority within 15 days. After the receipt of payment of cost of Rs. 3,500/- to the respondent is produced before the appellate authority and after receipt acknowledging the deposit of decreetal amount is also produced before the appellate authority, the appellate authority shall restore the proceeding of appeal being P.G. Appeal No. 57 of 2008 and shall decide the same after affording opportunity of hearing to both sides. 21. With the aforesaid clarifications and directions the petition is disposed of. Rule made absolute with order as to cost.