M/s Darvesh Enterprises vs Commissioner, Central Excise (Appeals)

This appeal seeks the quashing of the order dated December 16, 2015 passed by the Commissioner (Appeals) by which the appeal that was filed to assail the order dated February 19, 2015 passed by the Assistant Commissioner has been dismissed for the reason that it was filed beyond the statutory period contemplated under section 85(3A) of the Finance Act, 1994, the Finance Act.

It needs to be stated that after filing the appeal, the appellant has not been appeared to press the appeal. This would be clear from the orders dated November 30, 2018, February 28, 2019 and May 25, 2021. In fact by the order dated 30 November, 2018, the department was also required to take steps to serve the appellant. On May 25, 2021, the learned Authorized Representative appearing for the Department stated that the appellant had been served on September 24, 2019. However, despite service of notice no one appeared on behalf of the appellant on that date. It was accordingly ordered, in the interest of justice, that the matter stands adjourned on July 15, 2021 but it was made clear that no further adjournment shall be granted and the appeal would be decided on merits, even if the appellant did not appear. On July 15, 2021, the matter was adjourned to August 25, 2021 as it could not be taken up. Today, when the matter has been called out, the appellant has not appeared to press the appeal. The appeal is, accordingly, being decided on merits.

A perusal of the appellate order indicates that against the order dated February 19, 2015 passed by the Assistant Commissioner, which the appellant has stated was received on March 15, 2015, the appeal was filed before the Commissioner (Appeals) on July 2, 2015.

Section 85(3A) of the Finance Act provides that an appeal shall be presented within two months from the date of the receipt of the decision 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 two months, allow it to be presented within a further period of one month. The discretion of the Commissioner to condone the delay is, therefore, circumscribed by the condition set out in proviso and the delay can be condoned only if the appeal is presented within a further period of one month after the expiry of the statutory period of two months, provided of course, the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of two months.

In the present case, admittedly the order of the adjudicating authority was received by the appellant on March 15, 2015 but the appeal was presented before the Commissioner (Appeals) on July 02, 2015. It was clearly not presented within the period of two months nor within the extended period of one month. The Commissioner (Appeals) dismissed the appeal after placing reliance on the decision of Supreme Court in Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur, 2008 (221) ELT 163 (SC).

The provision of section 35 of the Central Excise Act, 1944 relating to appeals before Commissioner (Appeals) had come up for consideration before the Supreme Court in Singh Enterprises.

Section 35 of the Central Excise Act, 1944 provides that any person aggrieved by any decision or order passed under the Act, may appeal to 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.

The provisions of section 35 of the Central Excise Act, 1944 are pari materia with section 85(3A) of the Finance Act. The Supreme Court in Singh Enterprises, held that the period upto which the prayer for condonation can be accepted is limited by the proviso to sub-section (1) of section 35 of the Central Excise Act and the position is crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the expiry period of sixty days. In other words, the appellate authority can entertain the appeal by condoning the delay only upto 30 days beyond the normal period for preferring the appeal, which is 60 days.

The Commissioner (Appeals), therefore, did not commit any illegality in dismissing the appeal. The present appeal is, therefore, dismissed.

(Dictated & pronounced in open Court)