9911796707
TMI Blog2025 (5) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... al Goods and Service Tax, Central Excise, Division-1st, Kanpur has imposed service tax as well as various penalties upon the appellant under different provisions of the Finance Act, 1994. By the second order impugned dated 17.03.2023, the appeal filed by the appellant has been dismissed by the Commissioner (Appeals) as not maintainable, being barred by limitation and, by third order impugned dated 24.03.2025, the service tax appeal filed by the appellant has been dismissed by Customs, Excise and Service Tax Appeal Tribunal, Allahabad (in short the 'Tribunal'). 3. Learned counsel for the appellant tried to assail validity of the first order dated 07.07.2020 on merits and, then, contended that in view of peculiar facts of the case, the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments advanced on behalf of the appellant have no substance, inasmuch as, the appeal filed before the Tribunal was well within time and has not been dismissed as barred by limitation, but the Tribunal has simply upheld the order passed by the Commissioner (Appeals), who had rightly dismissed the appeal before him as barred by limitation. It is further urged that as per Section 85(3A) of the Finance Act, 1994, an appeal must be preferred within two months from the date of receipt of decision or order of adjudicating authority and, as far as power to condone delay is concerned, in terms of proviso attached to the said section, delay can be condoned for a further period of one month and not beyond that. It is further submitted that the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing heard learned counsel for the parties, we find that the first order was passed by the adjudicating authority on 07.07.2020. No dispute has been raised before us about the fact that copy of the said order was received by the appellant on 13.07.2020, but the appeal before the Commissioner (Appeals) was filed on 15.02.2023, i.e. after a period of about more than two years much beyond the expiry of the statutory period of limitation. The Commissioner (Appeals), while referring to Section 85(3A) of the Finance Act, 1994 and placing reliance upon the judgment of Hon'ble Supreme Court in the case of M/s Singh Enterprises (supra), held the appeal as not maintainable, being barred by limitation and dismissed the same by order dated 17.03.2023. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter. Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month." (emphasis by us) 13. A bare perusal of the afore-quoted provision leaves no room of doubt that though an appeal should be presented within two months from the date of receipt of decision or order of the adjudicating authority, in case it is filed beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 within 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 presented beyond the period of 30 days. The lang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period." 17. Though sub-section (5) of Section 35-B of the Act, 1944 does not specify a particular period for which delay in filing appeal can be condoned, apparently, Section 35-B is applicable in respect of appeals filed before the Appellate Tribunal and not before the Commissioner. In the instant case, since the appeal filed before the Tribunal was well within time, the provision has no application. For this reason, the other argument from the appellant's counsel that Tribunals in other States are condoning delay in filing appeals, is thoroughly misconceived and irrelevant for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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