Page No.# 1/8 vs The Unoin Of India And 2 Ors on 27 March, 2026

                                                                      Page No.# 1/8

GAHC010033232026




                                                                2026:GAU-AS:4450

                            THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : WP(C)/1486/2026

            M/S GOB ENTERPRISE
            A PARTNERSHIP CONCERN HAVING ITS PRINCIPLE PLACE OF BUSINESS
            AT CHITKAGAON, P.O.- CHAPRAKATA, BONGAIGAON, ASSAM,
            REPRESENTED BY MR. CHAKRADHAR DAS, ONE OF THE PARTNERS.



            VERSUS

            THE UNOIN OF INDIA AND 2 ORS.
            REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
            FINANCE TAXATION DEPARTMENT, NEW DELHI.

            2:THE COMMISSIONER (APPEALS)
             CGST
             CENTRAL EXCISE CUSTOMS
             3RD FLOOR
             GST BHAWAN
             KEDAR ROAD
             MACHKHOWA
             GUWAHATI- 781001
            ASSAM

            3:THE ASSISTANT COMMISSIONER
             CENTRAL GOODS AND SERVICE TAX
             BONGAIGAON DIVISION
             DHUBRI
            ASSAM-78330

Advocate for the Petitioner : DR. ASHOK SARAF, MR. A. KAUSHIK,B SARMA,MR P K
BORA,MR S J SAIKIA,MR. N N DUTTA,MR P BARUAH

Advocate for the Respondent : DY.S.G.I., SC, CGST
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                                     BEFORE
                HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
                                    ORDER

27/03/2026

Heard Dr. A Saraf, learned Senior counsel assisted by Mr. N N Dutta, learned counsel for the petitioner and Mr. S Chetia, learned Standing counsel, CGST appearing for the respondents.

2. The petitioner in the present writ petition has assailed the Order-in-Appeal dated 20.12.2023, issued by the Commissioner (Appeals), CGST, Guwahati, dismissing the appeal preferred by the petitioner against the Order-in-Original dated 16.09.2022, passed by the Assistant Commissioner, CGST, Bongaigaon Division, Dhubri, on the ground that the same was barred by limitation.

3. The petitioner, herein, being aggrieved by the Order-in-Original dated 16.09.2022, passed by the Assistant Commissioner, CGST, Bongaigaon Division, Dhubri, had instituted an appeal against the same before the Commissioner (Appeals), CGST, Guwahati on 10.01.2023. The petitioner along with the said appeal, had preferred an application for condonation of the delay, occasioning in instituting the said appeal within the limitation as prescribed under Sub Section (3A) of Section 85 of the Finance Act, 1994 (hereinafter, referred to as the Act of 1994). The petitioner along with the said appeal, had also made a pre- deposit of the requisite amount as mandated.

The petitioner in his delay condonation application had contended that although, the Order-in-Original was issued on 16.09.2022, the same was in fact Page No.# 3/8

served upon the petitioner only on 14.10.2022. The Commissioner (Appeals), after considering the contentions raised in the appeal memo, proceeded vide the impugned order dated 20.12.2023, to reject the contentions raised by the petitioner in the condonation application, and proceeded to dismiss the appeal by holding that the appeal was so instituted on 10.01.2023, beyond the period of limitation prescribed under the provisions of Sub Section (3A) of Section 85 of the said Act of 1994.

Being aggrieved, the petitioner has instituted the present writ petition.

4. Dr. Saraf, learned Senior counsel appearing for the petitioner, at the outset, by referring to the provisions of Sub Section (3A) of Section 85 of the Act of 1994, has submitted that although, the said provision mandates filing of an appeal within 2 (two) months from the date of receipt of the decision of the order of such adjudicating authority, wherein, such order is passed after the Finance Bill, 2012, has received the assent of the President and it relates to service tax, interest or penalty under the Chapter. He submits that the Commissioner (Appeals) while considering the prayer for condonation of the delay occasioning in instituting the connected appeal had only taken into consideration the main provision of Sub Section (3A), but had ignored the proviso thereto, which permits the Commissioner (Appeal), in the event he/she is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of 2 (two) months as prescribed under Sub Section (3A) of Section 85 of the Act of 1994 to allow institution of the same within a further period of 1 (one) month.

Mr. Saraf, learned Senior counsel appearing for the petitioner submits that the Order-in-Original having been served upon the petitioner on 14.10.2022, the Page No.# 4/8

appeal so instituted on 10.01.2023, was within the extended period permissible as per the proviso to Sub Section (3A) of Section 85 of the Act of 1994. Accordingly, he submits that the order passed by the Commissioner (Appeals), having been so passed without taking into consideration the relevant provisions of law, the same would not be sustainable and would mandate an interference from this Court.

5. Mr. S Chetia, learned Standing counsel, CGST appearing for the respondents has fairly submitted that given the facts disclosed in the present writ petition about receipt by the petitioner of the Order-in-Original dated 16.09.2022, the appeal filed on 10.01.2023, against the same is seen to be within the extended period of limitation prescribed under the proviso to Sub Section (3A) of Section 85 of the Act of 1994. He submits that on account of oversight, the Commissioner of Appeals may have ignored the provisions of the proviso to Sub Section (3A) of Section 85 of the Act of 1994 and proceeded to dismiss the appeal. He submits that an error being apparent on the face of the order dated 20.12.2023, the same may mandate an interference from this Court. However, a delay admittedly having occasioned in the matter in instituting the appeal filed by the appellant, herein, within the period of 2 (two) months as provided under the provisions of Sub Section (3A) of the 85 of the Act of 1994, the further period of 1 (one) month, so permitted, being only permissible to be so extended on a satisfaction drawn by the Commissioner (Appeals) in the matter, the matter be remanded back to the Commissioner (Appeals) for a fresh consideration of the issue and to pass fresh orders in the matter.

6. I have heard the learned counsels for the parties and also perused the Page No.# 5/8

materials available on record.

7. The facts noticed, hereinabove, are not in dispute.

8. The petitioner contends that the Order-in-Original passed on 16.09.2022, was in fact served upon him only on 14.10.2022. The appeal against the said Order-in-Original dated 16.09.2022, was admittedly instituted by the petitioner, herein, on 10.01.2023 before the jurisdictional Commissioner (Appeals) along with the pre-deposit mandated and an application praying for condonation of the delay occasioning in the matter.

9. The provisions of Sub Section (3A) of Section 85 of the Act of 1994, being relevant, the same is extracted hereinbelow:

"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."

10. Provisions of Sub Section (3A) of Section 85 of the Act of 1994, mandates that an appeal against an order of an adjudicating authority made on or after the Finance Bill, 2012, had received the assent of the President when it relates to service tax, interest or penalty under Chapter-5 of the said Act of 1994, the Page No.# 6/8

same would be permissible to be so presented within 2 (two) months from the date of receipt of such decision of the adjudicating authority. Accordingly, the period of limitation as mandated under Sub Section (3A) of Section 85 of the Act of 1994 for preferring an appeal is 2 (two) months from the date of receipt of the order of the adjudicating authority.

11. The petitioner, herein, had admittedly instituted the appeal before the Commissioner (Appeals) against the Order-in-Original dated 16.09.2022 beyond the period of 2 (two) months as mandated under the provisions of Sub Section (3A) of Section 85 of the Act of 1994. However, what is to be noticed is that a proviso has been incorporated to the provisions of Sub Section (3A) and the same mandates that the Commissioner (Appeals), if satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of 2 (two) months as mandated under Sub Section (3A), be allowed to present the appeal within a further extended period of 1 (one) month.

12. Considering the proviso to Sub Section (3A) of Section 85 of the Act of 1994, this Court finds that the appeal instituted in the matter by the petitioner, herein, on 10.01.2023 was within the extended period of limitation in terms of the proviso to Sub Section (3A) of Section 85 of the Act of 1994.

13. Having noticed the said position, on a perusal of the conclusion drawn by the Commissioner (Appeals) with regard to the prayer of the petitioner for condonation of the delay occasioning in instituting the connected appeal before it, this Court finds that the Commissioner (Appeals) had only taken into consideration the provisions of Sub Section (3A) of Section 85 of the Act of 1994, but had ignored the provisions of the proviso which had mandated an extension of 1 (one) month, subject to the Commissioner (Appeals) drawing Page No.# 7/8

satisfaction from the reasons assigned by the appellant that he was prevented by sufficient cause from instituting the appeal within the period of 2 (two) months, as provided for, in the provisions of Sub Section (3A) of Section 85 of the Act of 1994.

14. The non-consideration by the Commissioner (Appeals) of the provisions of the said proviso in the considered view of this Court has resulted in a relevant consideration not being taken note of by the Commissioner (Appeals) while disposing of the application for condonation of delay preferred by the petitioner, herein.

15. In view of the above conclusions drawn by this Court, this Court is of the considered view that the Order-in-Appeal dated 20.12.2023, would not be sustainable and accordingly, the same stands set aside. Having interfered with the order dated 20.12.2023, the appeal along with the application for condonation of delay filed by the petitioner stands restored to the file before the Commissioner (Appeals).

16. The Commissioner of Appeals shall now proceed to consider the application for condonation of delay filed by the petitioner along with the appeal as preferred by him against the Order-in-Original dated 16.09.2022, on 10.01.2023 and dispose of the said condonation application by reckoning the provisions of the proviso to Sub Section (3A) of Section 85 of the said Act 1994. The petitioner be granted a due opportunity of hearing before passing of any final orders with regard to the application for condonation of delay as instituted by him along with the connected appeal preferred before the Commissioner (Appeals) in the matter.

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17. The petitioner is also granted liberty to bring on record further materials, along with relevant decisions of the competent Court of law, for justifying that sufficient cause existed, which had prevented the petitioner from instituting the appeal within the period of 2 (two) months as provided under the provisions of Sub Section (3A) of Section 85 of the Act of 1994.

18. The Commissioner (Appeals) while considering the application for condonation of delay shall not take into consideration the observations already made in the order dated 20.12.2023, which has been interfered by this Court today.

19. It is further clarified that this Court has not made any comments either on the merit of the appeal preferred before the Commissioner (Appeals) and/or with regard to the prayer of the petitioner for condonation of delay occasioning in instituting such appeal. The same would now be mandated to be considered by the Commissioner (Appeals), afresh after providing due opportunity of hearing to the parties to the proceeding to place their respective cases.

20. With the above observation and directions, the present writ petition stands disposed of.

JUDGE

Comparing Assistant