SANJIV SRIVASTAVA:

This appeal is directed against Order-in-Appeal No.614-ST/APPL/LKO/2023 dated 23/08/2023 passed by Commissioner (Appeals) Customs, Central Excise & CGST, Lucknow. By the impugned order following has been held:-

“In this regard I find that Commissioner (Appeals) being creature of law is bound by the machinery provisions contained in the statute and cannot exceed the jurisdiction contained in the statute. Thus, without going into merit of the case, in the light of the statutory provision as above the appeal is rejected on the ground of being time barred.”

2.1 I have heard Shri Durgesh K. Maurya learned Counsel appearing for the appellant and Shri Abhishek Mukharjee learned Authorized Representative appearing for the revenue.

2.2 Learned Counsel for the appellant submits that:-

 the demand relates to HUF of Shri Raj Kumar Rastogi whose PAN is ADTPR 3892B and the demand raised against PAN No. AYIPS2047P which do not belong to him either incapacity as individual or to his HUF.

 Appellant is senior citizen aged around 78 years. Due to reason of medical exigencies the appeal before Commissioner (Appeal) could not be filed in time. The delay in filing the appeal be condoned.

2.3 Learned Authorized Representative reiterates the findings recorded in the orders of the lower authorities.

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 before the Commissioner (Appeals). In the present case the appeal has been filed as observed by the Commissioner (Appeals) after more than the stipulated time 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 (Appeals) within two months of the date of the receipt of the Order-in-Original by the appellant. As per the proviso Commissioner (Appeals) 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 the stipulated time from the date of receipt of Order-in-Original. Hence, Commissioner (Appeals) 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 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 :

Prov