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TMI Blog2023 (5) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of receipt of the order of such Adjudicating Authority but the proviso provides 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. In the instant case, the Commissioner (Appeals) has found that the appeal that was filed on February 11, 2019 was not only filed beyond the period of two months from the order dated January 16, 2018 but was even beyond the extended period of one month and so dismissed the appeal for the reason that there was no power to condone any delay beyond one month after the expiry of one month - The Commissioner (Appeals), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner], by which the appeal filed by the appellant to assail the order dated January 16, 2018 passed by the Additional Commissioner, was dismissed only for the reason that it was filed beyond the statutory time period contemplated under section 85 of the Finance Act, 1994 [the Finance Act]. 2. The relevant portion of the section 85 of the Finance Act is reproduced below: 85. Appeals to the Commissioner of Central Excise (Appeals) (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). (2) Every appeal shall be in the prescribed form a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sented within two months from the date of receipt of the order of such Adjudicating Authority but the proviso provides 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. 4. In the instant case, the Commissioner (Appeals) has found that the appeal that was filed on February 11, 2019 was not only filed beyond the period of two months from the order dated January 16, 2018 but was even beyond the extended period of one month and so dismissed the appeal for the reason that there was no power to condone any delay beyond one month after the expiry of one mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore lower authorities by not submitting any record/ data and by not responding to summons. I, thus find that appellants have no reason to file the appeal beyond the statutory time period. (emphasis supplied) 5. Shri Aakarsh Srivastava, learned counsel appearing for the appellant submitted that the order of the Adjudicating Authority was received by the appellant only on December 21, 2018, which fact was clearly stated by the appellant in form ST-IV that was filed before the Commissioner (Appeals). According to learned counsel for the appellant, as the appeal was filed on February 11, 2019 within a period of two months from the date of receipt of the order, the Commissioner (Appeals) committed an illegality in rejecting the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated December 21, 2018 issued by the Range Officer. 8. The facts stated in the communication dated May 11, 2023 sent by the Assistant Commissioner clearly reveal that the order was actually received by the appellant only on December 21, 2018 and this is what was stated by the appellant in ST Form-IV which was submitted by the appellant before the Commissioner (Appeals). The appeal was, therefore, filed within two months from the date of receipt of the order and it should have been entertained by the Commissioner (Appeals). 9. The Commissioner (Appeals), however, as is clear from the order dated July 22, 2019, observed the appellant had not submitted any explanation for delay in receipt of the order. Once the appellant had indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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