CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL ALLAHABAD REGIONAL BENCH - COURT NO.I (Arising out of Order-in-Appeal No.58/ST/Alld/2024 dated 23/01/2024 passed by Commissioner (Appeals) Central Excise & Service Tax, Allahabad)

Mr. Sanjay Kumar Gupta, …..Appellant (539, Chakdhaurha, Hardashpur, Raebareli-229001)

VERSUS Commissioner of Central Excise &

Service Tax, Allahabad ….Respondent (38 MG Marg, Civil Lines, Allahabad)

APPEARANCE Request to decide the matter on merits, for the Appellant Shri Santosh Kumar, Authorised Representative for the Respondent CORAM: HON’BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)

FINAL ORDER NO.70338/2025 DATE OF HEARING : 24 June, 2025 DATE OF DECISION : 24 June, 2025 SANJIV SRIVASTAVA:

This appeal is directed against Order-in-Appeal No.58/ST/Alld/2024 dated 23/01/2024 passed by Commissioner (Appeals) Central Excise & Service Tax, Allahabad.

2.1 Appellant through letter dated 23.06.2025 requested to decide the matter in accordance with the available records. I have heard Shri Santosh Kumar learned Authorized Representative appearing for the revenue.

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 more than expiry of period of 90 days after 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) within two months of 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 more than a year 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.

3.2 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 delay beyond the 30 days in filing the appeal before him, relevant part of the said decision are reproduced bellow for ready reference:-

“6. At this juncture, it is relevant to take note of Section 35 of the Act which reads as follows :

“35. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order :

Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.

(2) Every appeal unde