TaxTMI 
TaxTMI 
2026 (10) TMI 1975
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....ppeal is filed against Order-in-Appeal No.1417/ST/ALLD/2023 dated 07.11.2023 passed Commissioner (Appeals) Customs, CGST & Central Excise, Allahabad. By the impugned order following has been held:- "4.2 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 inasmuch as they have received the impugned Order on 19.05.2022 and filed the present appeal on 23.05.2023. i.e., after a lapse of more than twelve 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 month....
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.... preferring appeal. [para 8] Appeal - Limitation - Power of High Court/Supreme Court to condone delay - Supreme Court decision in 1998 (101) E.L.T. 9 (S.C.) on condonation of delay in filing appeal - No law declared in the impugned decision to the effect that Supreme Court can direct condonation even when the statute prescribed particular period of limitation Such stand would render specific provision providing for limitation rather otiose - Section 35 of Central Excise Act, 1944. [para 10]" 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 The issue involved in this appeal is well settled by the Hon'ble Supreme Court in the case of M/s Singh Enterprises vs. Commissioner of C. Ex., Jamshedpur reported in 2008 (221) E.L.T. 163 (S.C.) referred in the impugned order. 4.3 In case of Glaxo Smithkline Consumer Health Care Ltd. [2020 (36) G.S.T.L. 305 (SC)] Hon'ble Supreme Court has held as follows: 15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. (supra), which had adopted the view taken by the Full Bench of the Guja....
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....ion when the High Court can refuse to exercise its discretion, such as when alternative efficacious remedy is available to the aggrieved party. In paragraph 4 (last paragraph) of this decision, however, the Court plainly noted that it was not necessary to express any final opinion on the question as to whether Section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947) is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for under Article 226 of the Constitution. 17. Reliance was then placed on a three-Judge Bench decision of this Court in ITC Ltd. & Anr. v. Union of India [(1998) 8 SCC 610 = 1998 (101) E.L.T. 9 (S.C.)]. In that case, the High Court had dismissed the writ petition on the ground that the petitioner therein had an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Concededly, this Court was pleased to uphold that opinion of the High Court. However, whilst considering the difficulty expressed by the petitioner therein that the statutory remedy of appeal had now become time barred during the pendency of the p....
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....sessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such. 19. Arguendo, reverting to the factual matrix of the present case, it is noticed that the respondent had asserted that it was not aware about the passing of assessment order dated 21-6-2017 although it is admitted that the same was served on the authorised representative of the respondent on 22-6-2017. The date on which the respondent became aware about the order is not expressly stated either in the application for condonation of delay filed before the appellate authority, the affidavit filed in support of the said application or for that matter, in the memo of writ petition. On the other hand, it is seen that the amount equivalent to 12.5% of the tax amount came to be deposited on 12-9-2017 for and on behalf of respondent, without filing an appeal and without any demur - after the expiry of statutory period of maximum 60 days, prescribed under Section 31 of the 2005 Act. Not only that, the respondent....
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....uirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24-9-2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all. 20. Reverting to the contention that the respondent having failed to assail the order passed by the appellate authority, dated 25-10-2018 rejecting the application for condonation of delay, the assessment order passed by the Assistant Commissioner, dated 21-6-2017 stood merged, need not detain us in view of the exposition of this Court in Raja Mechanical Company Private Limited v. Commissioner of Central Excise, Delhi-I [(2012) 12 SCC 613 = 2013 (29) S.T.R. 81 (S.C.) = 2012 (279) E.L.T. 481 (S.C.)]. It is well settled that rejection of delay application by the appellate forum does not entail in merger of the assessment order with that order. 21. Taking any view of the matter, therefore, the High Court ought not to have entertained the subject writ petition filed by the respondent herein. The same deserved to ....
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....ause from presenting the appeal and the stipulated period of two months. 14. Therefore, on analysis of the provision above, what is discernible is that an appeal is required to be filed within two months from the date of receipt of the decision or order, which period can be extended for a further period of one month on sufficient cause being shown. Thus, in any event, an appeal before the Commissioner (Appeals) must be filed within a maximum period of three months. Any delay beyond three months is not condonable by the Commissioner (Appeals). 15. In the present case, the appeal was admittedly filed more than three months after the original order was communicated to the Appellant. Therefore, the Commissioner (Appeals) was justified in dismissing this appeal by invoking the bar of limitation and holding that he lacked the power to condone the delay beyond three months. 16. By reference to the provision of Section 35B of the Central Excise Act, 1944, which is made applicable to appeals before the Tribunal, the Appellant cannot bypass or circumvent the clear and unambiguous provisions of subsection (3A) of Section 85 of the Finance Act, 1994. The provision un....