Bombay High Court
Siddhi Developers vs The Joint Commissioner Central Gst Pune ... on 2 July, 2025
Author: M. S. Sonak
Bench: M. S. Sonak
2025:BHC-OS:9977-DB
Sayyed 46-CEXA.7.2025.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CENTRAL EXCISE APPEAL NO.7 OF 2025
Siddhi Developers
Flat No.1001, B-Wing
Hyde Park, Bibvewadi,
Pune - 411 037
STN:ABNFS8561QSD001 ...Appellant
Versus
The Joint Commissioner,
Central GST,
Pune-II Commissionerate,
1st Floor, F Wing, GST Bhavan,
41A Sasson Road, Pune - 411 001 ...Respondent
_____________________________________________________
Mr. Prateek Jha for the Appellant.
Mr. Karan Adik for the Respondent.
_____________________________________________________
CORAM : M. S. Sonak &
Jitendra Jain, JJ.
DATED : 2 July 2025
ORAL JUDGMENT:- (Per M. S. Sonak, J.)
1. Heard Mr. Jha for the Appellant and Mr. Adik for the
Respondent.
2. This appeal is directed against the order dated 30 September
2020 made by the Commissioner (Appeals) holding that he has no
power to condone the delay beyond one month of the initially
prescribed period of two months under the proviso to sub-section (3A)
of Section 85 of the Finance Act, 1994 and the Tribunal's order dated 10
May 2023 refusing to interfere with the order of Commissioner
(Appeals).
Sayyed 46-CEXA.7.2025.docx
3. Mr. Jha urges the formulation of the following questions,
which, according to him, are substantial questions of law:-
"(a) Whether, on the facts and in the circumstances of the case and
in law, the Tribunal was right in not appreciating that the Tribunal
had power u/s 35C of the Central Excise Act, 1944 read along with
section 86(7) of the Finance Act, 1994 to condone delay in filing of
appeal before the Commissioner (Appeal) beyond the one month
period provided in proviso to section 85(3A).
(b) Whether, on the facts and in the circumstances of the case and
in law, the Tribunal was justified in dismissing the appeal without
considering the decisions of the Co-ordinate benches."
4. Mr. Jha refers to Section 86(7) of the Finance Act, 1994, and
based on this, relies on the provisions of sub-section (5) of Section 35B
of the Central Excise Act, 1944. He submits that there are no limits
imposed on the Tribunal regarding any maximum delay period it can
condone, provided sufficient cause is shown. Accordingly, he submits
that in this case, the Tribunal should have evaluated the sufficient cause
shown by the Appellant before the Commissioner (Appeals) and
condoned the delay of hardly 17 days. He submitted that there was
more than sufficient cause justifying condonation.
5. Mr. Jha also referred to the provisions in sub-section (1) of
Section 35C of the Central Excise Act, 1944 to submit that the Tribunal
has extensive powers to interfere with orders of the Commissioner
(Appeals) and this would include the power to condone the delay
beyond the period prescribed under the proviso to sub-section (3A) of
Section 85 of the Finance Act, 1994.
6. Mr. Jha finally submitted that there were decisions of the Co-
ordinate Benches of the Tribunal directing condonation of delay by the
Commissioner (Appeals), even though the delay was beyond the period
prescribed in the proviso to sub-section (3A) of Section 85 of the
Sayyed 46-CEXA.7.2025.docx
Finance Act, 1994. He submitted that non-consideration of the decisions
of the Co-ordinate Benches is a good ground to interfere with the
Tribunal's decision in this case.
7. Mr. Adik learned counsel for the Respondent submits that no
substantial question of law is involved in this appeal, and in any event,
such questions must be answered against the Appellant given the law
laid down by the Hon'ble Supreme Court in the case of Assistant
Commissioner (CT) LTU, Kakinada & Ors. vs. M/s. Glaxo Smith Kline
Consumer Health Care Limited 1 and Abhyudaya Co-operative Bank Ltd.
vs. Union of India & Ors.2 decided by a Co-ordinate Bench of this Court.
8. The rival contentions now fall for our determination.
9. In this case, the Joint Commissioner, Central GST, Pune-II
Commissionerate, issued the Order-in-Original on 15 November 2019,
which the Appellant received on 30 November 2019. The Appellant
filed an appeal before the Commissioner (Appeals) only on 17 March
2020, along with an application for condonation of delay. The
Commissioner (Appeals), by his Order-in-Appeal dated 30 September
2020, dismissed the application for condonation of delay, noting that it
exceeded the period specified in the proviso to sub-section (3A) of
Section 85 of the Finance Act, 1994, and therefore, he lacked the
authority to condone this delay.
10. The Appellant then appealed to the Customs, Excise and
Service Tax Appellate Tribunal, Mumbai (CESTAT), on 4 January 2021,
which was dismissed on 10 May 2023.
11. Section 85(3A) of the Finance Act, 1994 reads as follows:-
1 (2020) 19 SCC 681
2 WP(L) No.4053 of 2020 decided on 25 February 2021
Sayyed 46-CEXA.7.2025.docx
"(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."
month."
12. From the above, it is evident that an appeal relating to the
Finance Act, 1994 must be presented within two months from the date
of receipt of the decision or order of the adjudicating authority, if such
decision or order has been made after the Finance Bill, 2012 had
received the assent of the President. From the record, it is apparent that
the Order-in-Original dated 15 November 2019 was passed after the
receipt of assent of the President to the Finance Bill, 2012.
13. The proviso to sub-section (3A) of Section 85, however,
empowers the appellate authority to condone the delay in presentation
of the appeal beyond the prescribed period of limitation of two months,
within a further period of one month, if he is satisfied that the appellant
was prevented by sufficient cause 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).
Sayyed 46-CEXA.7.2025.docx
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 sub-section (3A) of Section 85 of the
Finance Act, 1994. The provision under Section 35B (5) applies only to
appeals presented before the Tribunal, not to appeals presented before
the Commissioner (Appeals).
17. Similarly, the provisions of Section 35C (1), however widely
worded, do not empower the Tribunal to direct the Commissioner
(Appeals) to exercise powers that the legislature has not vested in the
Commissioner (Appeals). By holding that it has no power to condone
the delay beyond three months, the Commissioner (Appeals) has acted
in accord with the provisions of sub-section (3A) of Section 85 of the
Finance Act, 1994. Therefore, the Tribunal, by exercising the powers
under Section 35C (1), could not have either itself condoned the delay
in filing an appeal before the Commissioner (Appeals) or directed the
Commissioner (Appeals) to condone the delay beyond the maximum
prescribed period. The Tribunal was therefore justified in finding no
fault with the Commissioner (Appeals)'s order dated 30 September
2020 and dismissing the appeal against the same.
18. In M/s. Glaxo Smith Kline Consumer Health Care Limited
(supra), the Hon'ble Supreme Court has interpreted similar provisions
Sayyed 46-CEXA.7.2025.docx
contained in Section 31 of the Andhra Pradesh Value Added Tax Act,
2005 and held that the appellate authority cannot condone delay if any
appeal is preferred after an aggregate period of 60 days. The Hon'ble
Supreme Court has held that the appellate authority is not empowered
to condone the delay in filing any appeal preferred after the aggregate
time period of 60 days. In Abhyudaya Co-operative Bank Ltd. (supra),
the Coordinate Bench of this Court has also taken the same view.
19. The first question proposed by Mr. Jha, therefore, does not
arise and in any event, would have to be answered against the
Appellant.
20. Insofar as the second question proposed by Mr. Jha, we are
not shown any decisions of the Co-ordinate Benches. However, even if
we assume that such decisions exist, the Tribunal was justified in
ignoring them, given the law laid down by this Court in Abhyudaya Co-
operative Bank Ltd. (supra) and the Hon'ble Supreme Court in M/S.
Glaxo Smith Kline Consumer Health Care Limited (supra) . Therefore,
even the second question of law does not arise, and in any event, it will
have to be decided against the Appellant.
21. For the above reasons, we find that this appeal raises no
substantial questions of law and, in any event, even the proposed
questions would have to be answered against the Appellant.
22. For the above reasons, we dismiss this appeal without
ordering costs.
(Jitendra Jain, J.) (M. S. Sonak, J.)
Signed by: Sayyed Saeed Ali
Designation: PA To Honourable Judge
Date: 04/07/2025 12:25:09
