[Cites 3, Cited by 0]
Uttarakhand High Court
27 March vs The Commissioner on 27 March, 2026
2026:UHC:2177-DB
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE HON'BLE CHIEF JUSTICE MR. MANOJ KUMAR GUPTA
AND
THE HON'BLE JUSTICE MR. SUBHASH UPADHYAY
Central Excise Appeal No.1 of 2026
27 March, 2026
Sai Auto Industries -----Appellant
Versus
The Commissioner, Central Goods and Services Tax and
Others
----Respondents
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Presence:-
Mr. Rohit Arora, learned counsel for the appellant.
Mr. Shobhit Saharia, learned counsel for the respondents.
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JUDGMENT :
(per Mr. Manoj Kumar Gupta C. J.)
1. Heard learned counsel for the parties.
2. The present appeal has been filed under Section
35-G of the Central Excise Act, 1944 challenging the order
of Customs, Excise and Service Tax Appellate Tribunal (for
short "CESTAT") dated 29.09.2025 in Excise Appeal
No.50976 of 2025.
3. Before the Tribunal, the appellant had
challenged the order dated 28.12.2022 passed by the
Commissioner, Central Goods and Service Tax (Appeals),
Dehradun whereby appeal against the order dated
08.02.2022 passed by the Additional Commissioner was
dismissed. The appeal has been dismissed on the ground
that it was filed beyond time stipulated under Section 35
of the Central Excise Act.
2026:UHC:2177-DB
4. Section 35 of the Central Excise Act is 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 Principal
Commissioner of Central Commissioner of
Central Excise, may appeal to the Principal
Commissioner of Central Excise or
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:
Provided that the Commissioner (Appeals)
may, if he is satisfied that the appellant was
prevented by sufficient cause from presenting
the appeal within the aforesaid period of sixty
days, allow it to be presented within a further
period of thirty days."
5. The admitted fact is that order dated
28.12.2022 challenged in the appeal was received by the
appellant on 18.02.2022. The appeal was filed on
30.05.2022. The Tribunal has excluded the period from
15.03.2020 to 28.02.2022, in view of order of Hon'ble
Supreme Court dated 10.01.2022 in Suo Motu Writ
Petition (C) No.3 of 2020, the relevant parts of which are
as follows:
"5. Taking into consideration the arguments
advanced by learned counsel and the impact of
the surge of the virus on public health and
adversities faced by litigants in the prevailing
conditions, we deem it appropriate to dispose of
the M.A. No. 21 of 2022 with the following
directions:
2026:UHC:2177-DB
I. The order dated 23.03.2020 is restored
and in continuation of the subsequent
orders dated 08.03.2021, 27.04.2021 and
23.09.2021, it is directed that the period
from 15.03.2020 till 28.02.2022 shall stand
excluded for the purposes of limitation as
may be prescribed under any general or
special laws in respect of all judicial or
quasi-judicial proceedings.
II. ....
III. In cases where the limitation would have
expired during the period between
15.03.2020 till 28.02.2022.
notwithstanding the actual balance period
of limitation remaining, all persons shall
have a limitation period of 90 days from
01.03.2022. In the event the actual
balance period of limitation remaining, with
effect from 01.03.2022 is greater than 90
days, that longer period shall apply."
6. The Tribunal has held that under Section 35 of
the Act, the prescribed limitation is 60 days which expired
on 29.04.2022 as the limitation started running from
01.03.2022.
7. The power to condone delay of 30 days beyond
the prescribed period of 60 days could be exercised only if
sufficient cause is made out. In the present case, the
appellant had not filed any application for condonation of
delay and, therefore, the limitation did not automatically
get extended to 90 days. Accordingly, the contention of
the appellant that the limitation when counted from
01.03.2022 would be 90 days and would expire on
30.05.2022 has been repelled.
2026:UHC:2177-DB
8. Learned counsel for the appellant submits that
the order dated 10.01.2022 was passed by the Hon'ble
Supreme Court exercising power under Article 142 of the
Constitution in view of the peculiar circumstances
prevailing during Covid-19 pandemic.
9. He submits that vide paragraph no.5(3), the
Hon'ble Supreme Court has specifically provided that the
limitation would be 90 days in every case whether it is
pending before a judicial authority or before a quasi
judicial authority under any general or special laws. He
submits that, therefore, in the present case also the
appellant was entitled to file appeal within 90 days from
01.03.2022 and, if so counted, the appeal was within
limitation.
10. On the other hand, Shri Shobhit Saharia,
learned counsel appearing on behalf of the revenue
contends that paragraph no.3 would not get attracted in
the instant case as thereby the Hon'ble Supreme Court
has provided limitation of 90 days only in case where the
limitation was expiring between 15.03.2020 and
28.02.2022.
11. He submits that in the case of the appellant, the
limitation of 60 days did not expire during the said period
and, therefore, as per sub-paragraph no.3 of paragraph
2026:UHC:2177-DB
no.5 the appellant is not entitled to benefit of paragraph
no.5(3).
12. The direction given by the Hon'ble Supreme
Court in the said paragraph clearly states that the
limitation would be 90 days from 01.03.2022. Although it
speaks of the cases where limitation had expired between
15.03.2020 and 28.02.2022 but if the submission is
accepted then in such cases irrespective of the limitation
prescribed under the Statute the same would get
extended for 90 days from 01.03.2022 whereas in other
cases where limitation did not expire during the said
period, the limitation would continue to be as prescribed
in the Statute and thus an artificial distinction would come
into existence between two category of cases which was
never intended by the Hon'ble Supreme Court.
13. Additionally, 28.05.2022 was Saturday and
29.05.2022 was Sunday and, therefore, the appeal filed
on 30.05.2022 cannot be said to have been filed beyond
the limitation.
14. Consequently, we are unable to accept the
submission of learned counsel appearing for the revenue.
The order of CESTAT dismissing the appeal as barred by
limitation is, accordingly, set aside. The appeal shall stand
restored to its original number and shall be decided on
merits.
2026:UHC:2177-DB
15. Accordingly, the present appeal stands allowed.
16. Pending application, if any, also stands disposed
of.
(MANOJ KUMAR GUPTA, C. J.)
(SUBHASH UPADHYAY, J.)
Dated: 27.03.2026
SS
SUKHBANT
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SINGH
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Date: 2026.03.27 15:46:32 +05'30'
