An appeal to the Commissioner (Appeals) is barred by time if not filed within the statutory period specified in the Finance Act, 1994, and requires sufficient cause for delay to be justified.

SANJIV SRIVASTAVA:

This appeal is directed against Order-in-Appeal No.27 & 28-CUS/APPL/LKO/2024 dated 24/01/2024 passed by Commissioner (Appeals) Customs, Central Excise & CGST, Lucknow. By the impugned order following has been held:-

“5.5 The Commissioner (Appeals), being the creature of law, is bound by the machinery provisions contained in the statute and cannot exceed the jurisdiction contained in the statute. The Commissioner (Appeals) also does not have the power of writs, available only to the Hon'ble Supreme Court and the Hon'ble High Courts.

5.6 Thus, without going into the merits of the case, in the light of the statutory provisions as detailed above, both the present appeals filed by the appellants are rejected on the ground of being time barred.”

2.1 On the last date i.e. 06.01.2026, matter was adjourned for today on the request of learned Counsel with the following observations:-

“Learned Counsel appearing for the appellant wants to submit her Vakalatnama in the matter. Further, she submits that the matter may be taken up after one week for final hearing.

2.0 In view of the request made, matter is adjourned to 15.01.2026 for final hearing.”

2.2 From the above, it is clear that the matter was fixed for final hearing with the consent of Counsel but see fails to appear today i.e. 15.01.2026. I also note that matter was adjourned either on account of non presence of the counsel or on the request of counsel on 29.09.2025, 06.11.2025, 28.11.2025 and on 06.01.2026. The matter was fixed for hearing after seeking the convenience of counsel and on assurance of presence today. I also note that proviso to Section 35C (1A) restricts the total number of exemptions that could be granted to either side in appeal to three. Thus I do not find any reason to further adjourn this matter in absence of any request.

2.3 I proceed to decide the appeal after hearing Shri Santosh Kumar Authorized Representative for the revenue, who reiterates the findings recorded in the impugned order.

3.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments.

3.2 I find that the issue involved in the present appeal is with respect of condonation of delay in filing the appeal by the Commissioner (Appeal). In the present case the appeal has been filed as observed by the Commissioner (Appeal) after the condonable period from the receipt of the Order of Original Authority. Section 85 (3A) of the Finance Act , 1994 provides as follows:

“SECTION 85. Appeals to the Commissioner of Central Excise (Appeals).

(3A) An appeal shall be presented within two months from 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.”

In terms of the above, it is observed that the appeal was to be filed before the Commissioner (Appeal) after the condonable period from the date of the receipt of the Order-in-Original by the appellant. As per the proviso Commissioner (Appeal) has been granted the power to condone delay of one month in filing the appeal on sufficient cause being shown. In the present case appeal was filed before the Commissioner (Appeal) after expiry of condonable period from the date of receipt of Order-in- Original. Hence Commissioner (Appeal) has rightly held that appeal was filed beyond the prescribed period of limitation and has dismissed the same on this ground alone.

3.3 This issue is squarely covered by the decision of Hon’ble Supreme Court in the case of M/s Singh Enterprises [2008 (221) E.L.T. 163 (SC)], wherein it has been held that Commissioner (Appeals) could not condone the