Allahabad High Court
M/S S R Cable Through Its Proprietor ... vs The Customs, Excise & Service Tax ... on 12 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:77079-DB
Chief Justice's Court
Case :- CENTRAL EXCISE APPEAL No. - 7 of 2025
Appellant :- M/s S R Cable through its Proprietor Ambrish Tripathi
Respondent :- The Customs, Excise & Service Tax Appellate Tribunal and 2 others
Counsel for Appellant :- Anarannaj Pratap Singh, Chandra Shekhar Sharma
Counsel for Respondent :- Amit Mahajan
Hon'ble Arun Bhansali,Chief Justice
Hon'ble Kshitij Shailendra,J.
1. Heard learned counsel for the parties and perused the record.
2. The present appeal has been filed challenging three orders and the consequential recovery. By the first order impugned dated 07.07.2020, the Assistant Commissioner, Central Goods and Service Tax, Central Excise, Division-1st, Kanpur has imposed service tax as well as various penalties upon the appellant under different provisions of the Finance Act, 1994. By the second order impugned dated 17.03.2023, the appeal filed by the appellant has been dismissed by the Commissioner (Appeals) as not maintainable, being barred by limitation and, by third order impugned dated 24.03.2025, the service tax appeal filed by the appellant has been dismissed by Customs, Excise and Service Tax Appeal Tribunal, Allahabad (in short the 'Tribunal').
3. Learned counsel for the appellant tried to assail validity of the first order dated 07.07.2020 on merits and, then, contended that in view of peculiar facts of the case, the appeal filed before the Commissioner (Appeals) should not have been dismissed as barred by limitation but was liable to be considered on merits. Further submission has been made that even if the Commissioner (Appeals) dismissed the appeal as barred by limitation, the Tribunal was not justified in upholding the said order and since the appellant's case stands on strong footings, the Tribunal should have condoned delay in filing appeal before the Commissioner (Appeals) and decided the matter on merits.
4. Learned counsel further submits that the observation made by the Tribunal to the effect that the Commissioner (Appeals) has no authority to condone delay beyond 30 days, is wholly unsustainable, inasmuch as, the provisions of Section 5 of the Limitation Act, 1963 would be applicable in all proceedings, and not only the Commissioner but also the Tribunal would be obliged to condone delay in filing appeal(s), if sufficient ground is made out for not filing appeal(s) within the statutory period of limitation.
5. Further submissions have been made that different standards are being adopted by the Tribunals working in different States where delay is being condoned by the Tribunals whereas, in the present case, the appeal has been dismissed as barred by limitation. Certain orders passed by the different Tribunals have been annexed alongwith the writ petition and certain orders were produced during the course of hearing.
6. Per contra, learned Standing Counsel submits that the arguments advanced on behalf of the appellant have no substance, inasmuch as, the appeal filed before the Tribunal was well within time and has not been dismissed as barred by limitation, but the Tribunal has simply upheld the order passed by the Commissioner (Appeals), who had rightly dismissed the appeal before him as barred by limitation. It is further urged that as per Section 85(3A) of the Finance Act, 1994, an appeal must be preferred within two months from the date of receipt of decision or order of adjudicating authority and, as far as power to condone delay is concerned, in terms of proviso attached to the said section, delay can be condoned for a further period of one month and not beyond that. It is further submitted that the Hon'ble Supreme Court, in the case of M/s Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur and others, 2008 (221) E.LT. 163 (S.C.), has laid down that in view of statutory language used under the Act, Section 5 of the Limitation Act has no application and the Authority is powerless to condone delay beyond statutory limit prescribed therein.
7. It is also argued that placing reliance on M/s Singh Enterprises (supra), a co-ordinate Bench of this Court, by order dated 22.11.2024, dismissed an identical appeal being Central Excise Appeal No. 14 of 2024 (Saurabh Kumar Agarwal vs. The Customs Excise and Service Tax Appellate Tribunal), Civil Misc. Review Application No. 561 of 2024 (Saurabh Kumar Agarwal vs. the Customs, Excise and Service Tax Appellate Tribunal) filed thereagainst was also dismissed by order dated 19.12.2024, which orders have not been interfered with by the Hon'ble Supreme Court by dismissing Special Leave Petition (Civil) Diary No(s). 12978 of 2025 (Saurabh Kumar Agarwal vs. The Customs Excise and Service Tax Appellate Tribunal) by order dated 04.04.2025.
8. In rejoinder, learned counsel for the appellant submits that as per Section 35-B of the Central Excise Act, 1944, Tribunal is vested with power to admit appeal after expiry of statutory period and, therefore, the appeal may be allowed setting aside the orders impugned as well as consequential recovery and the matter may be remanded for consideration of the cause of the appellant on merits.
9. Having heard learned counsel for the parties, we find that the first order was passed by the adjudicating authority on 07.07.2020. No dispute has been raised before us about the fact that copy of the said order was received by the appellant on 13.07.2020, but the appeal before the Commissioner (Appeals) was filed on 15.02.2023, i.e. after a period of about more than two years much beyond the expiry of the statutory period of limitation. The Commissioner (Appeals), while referring to Section 85(3A) of the Finance Act, 1994 and placing reliance upon the judgment of Hon'ble Supreme Court in the case of M/s Singh Enterprises (supra), held the appeal as not maintainable, being barred by limitation and dismissed the same by order dated 17.03.2023.
10. Further appeal filed by the appellant before the Tribunal was well within statutory period of limitation and, therefore, the submission advanced by the learned counsel for the appellant that the Tribunal should have condoned the delay in filing appeal, does not at all arise for consideration as neither the appeal was barred by limitation nor has the same been dismissed as such.
11. In fact the learned counsel for the appellant wanted this Court to go to the extent of observing that the Tribunal should have condoned the delay occurred in filing the appeal before the Commissioner (Appeals) and direct consideration of the case on merits. Such an argument is thoroughly misconceived, inasmuch as, it is the Court of Appeal, who has or does not have or does have limited power to condone delay in filing an appeal before it. Superior Court has no power to condone delay in filing appeal before the Court/Authority subordinate to it. Hence, the argument advanced on that line has no substance and is, therefore, discarded. Further, even while considering the appeal, the Tribunal was required to examine the issue based on provisions of Section 85(3A) of the Finance Act and not Section 35-B of the Central Excise Act, 1944.
12. Now coming to the provisions regarding condonation of delay, Section 85(3A) of the Finance Act, 1994, needs reproduction, as under:-
"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."
(emphasis by us)
13. A bare perusal of the afore-quoted provision leaves no room of doubt that though an appeal should be presented within two months from the date of receipt of decision or order of the adjudicating authority, in case it is filed beyond the said period of time, the Commissioner of Central Excise (Appeals), in a given case, where he is satisfied regarding existence of sufficient cause preventing the appellant from presenting the appeal within time, may allow its presentation within a further extended period of one month. It means that though power to condone delay is very much there under the proviso itself, the same cannot go beyond the extended period of one month; that is to say that total 60+30=90 days period is available for filing appeal. Therefore, this Court does not find any error in the order of the Commissioner (Appeals) in dismissing the appeal as barred by limitation, inasmuch as, the same was filed after a period of more than two years.
14. The Hon'ble Supreme Court, in the case of M/s Singh Enterprises (supra), has clearly laid down that statutory scheme under the Act excludes applicability of Section 5 of the Limitation Act. For a ready reference, paragraph 8 of the said judgment is reproduced as under:-
"8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 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 condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period."
15. The above judgement has been consistently followed by this Court as noticed herein-before. In fact, the Tribunal also has dismissed the appeal by following the ratio laid down in the above judgement.
16. Now, coming to the interpretation of Section 35-B of the Central Excise Act, 1944, as made by the learned counsel for the appellant, the Court deems it appropriate to reproduce relevant portions of the said section:-
"35 B. Appeals to the Appellate Tribunal-(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order-
..............
(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Principal Commissioner of Central Excise or Commissioner of Central Excise, or , as the case may be, the other party preferring the appeal.
................
(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period."
17. Though sub-section (5) of Section 35-B of the Act, 1944 does not specify a particular period for which delay in filing appeal can be condoned, apparently, Section 35-B is applicable in respect of appeals filed before the Appellate Tribunal and not before the Commissioner. In the instant case, since the appeal filed before the Tribunal was well within time, the provision has no application. For this reason, the other argument from the appellant's counsel that Tribunals in other States are condoning delay in filing appeals, is thoroughly misconceived and irrelevant for the instant case.
18. In view of above discussion, we do not find any error in orders passed by the Commissioner (Appeals) as well as the Tribunal. Consequently, the present appeal has no merit and is dismissed.
Order Date :- 12.5.2025
Sazia
(Kshitij Shailendra, J) (Arun Bhansali, CJ)
