P. K. CHOUDHARY:

The present appeal has been filed by the Appellant assailing the Order-in-Appeal No.1535/ST/ALLD/2023 dated 14.12.2023 passed by Commissioner (Appeals) Customs, CGST & Central Excise, Allahabad.

Heard both the sides and perused the appeal records.

I find that the learned Commissioner (Appeals) has not decided the appeal on merits but dismissed the same on being barred by limitation of time and thus not maintainable. I find that the Order-in-Original dated 20.12.2022 was dispatched on 20.12.2022 by the Department and was received on 24.04.2023. However, the appeal was filed before the first Appellate Authority only on 30.08.2023. The relevant paragraphs of the impugned order are reproduced:-

“4.1 It is further observed that the prescribed time limit to file the appeal is specified as two months under Section 85(3A) of the Act, and therefore, the present appeal filed by the appellant is beyond the time limit specified under Section 85(3A) of the Act in as much as they have received the impugned Order on 24.04.2023 and filed the present appeal on 30.08.2023 i.e., after a lapse of four months and beyond the time limit specified under Section 85(3A) of the Act, which provides as under:

Section 85(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.

4.2 The above statutory provisions restrict any appeal to be filed within a period of two months from the date of receipt of the decision or order of the Adjudicating Authority and the proviso to Section 85(3A) of the Act above empowers the Commissioner of Central Excise (Appeals), to allow the appeal to be filed within a further period of one month, if he is satisfied that the appellant was prevented by sufficient cause for presenting the appeal within the aforesaid period of two month.

4.3 I find that in the instant case, the appellant has requested for condonation of delay. Since, the Commissioner (Appeals) can condone the delay of one month only and the delay in the instant case is much beyond this time limit, I find that the appeal filed by the appellant beyond the prescribed time limit, is time barred and as such, is liable for dismissal.

4.4 Even the Hon’ble Supreme Court in the case of M/s Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur 2008 (221) E.L.T. 163 (SC), inter alia, held as under:

Appeal to Commissioner (Appeals) - Limitation - Condonation of delay - Appeal filed after 21 months from date of service of order dismissed by Commissioner (Appeals) - Writ petition filed against impugned order dismissed by High Court - Appeal to be filed within 60 days from date of communication of order - Delay condonable further period of 30 days on sufficient cause being shown - Appellate authority having no power to allow appeal presented beyond the said 30 days - Impugned orders sustainable - Section 35 of Central Excise Act, 1944. [paras 2, 3, 8]

Appeal to Commissioner (Appeals) - Limitation - Appeal to be filed within 60 days from date of communication of order - Commissioner (Appeals) empowered to condone delay of further period of 30 days only - Section 5 of Limitation Act, 1963 not applicable - Section 35 of Central Excise Act, 1944. - The proviso to sub-section (1) of Section 35 ibid 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 language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condonin