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TMI Blog2025 (4) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017, on which date Aniruddha Pratap Singh, partner of the appellant, appeared before the Joint Commissioner and made submissions. 3. Feeling aggrieved by the aforesaid order dated 28.02.2017 passed by the Joint Commissioner, the appellant filed an appeal before the Commissioner (Appeals) on 18.10.2017. In Form ST-4 filed with the appeal it was stated that the order dated 28.02.2017 was received on 03.08.2017. The appeal was signed by Sangram Singh as partner of the appellant. In paragraph 15 of the memo of appeal filed before the Commissioner (Appeals), the appellant stated that it is a partnership concern with two existing partners. Along with the appeal, an application for condonation of delay was filed stating inter-alia that appellant partnership firm was re-constituted on 10.06.2016 with two partners, namely, Aniruddha Pratap Singh and Sangram Singh and both the partners were cousins. The order passed by the Joint Commissioner was received by Aniruddha Pratap Singh, as partner of the firm, on 07.04.2017 but he did not inform Sangram Singh about the said order and nor did he file any appeal. It was only when the Jurisdictional Range Officer sent a recovery letter dated 31.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the stipulated time of two months. In the present case, the appeal was filed even after the expiry of the extended period of one month and, therefore, the Commissioner (Appeals) was justified in dismissing the appeal. To support this contention, learned authorized representative placed reliance upon a decision of the Tribunal in M/s. Diamond Construction vs. Commissioner of Customs, Central Excise & Service Tax-Service Tax Appeal No. 51592 of 2016 decided on 19.02.2019. 7. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 8. It is not in dispute that the order dated 28.02.2017 passed by the Joint Commissioner was served upon Aniruddha Pratap Singh, partner of the firm on behalf of the appellant, on 07.04.2017. This is clear from the acknowledgement receipt signed by Aniruddha Pratap Singh, which is reproduced below: Acknowledgement I, Anirudh Singh, Grandson of M.N. Singh, Badra, Kotma, Distt.- Anuppur has received the Order in Original No. 59-61/JC/ST/JBP/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul to reproduce the relevant provisions of section 85 of the Finance Act and they are as follows:- "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). ***** (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." 13. On a plain reading of the aforesaid provisions of section 85(3A) of the Finance Act, it is clear that any person aggrieved by any decision or order passed by the adjudicating authority may appeal to the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. 9. Learned counsel for the appellant has emphasized on certain decisions, more particularly, I.T.C.'s case (supra) to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the Tribunal in Diamond Construction, in which the provisions of section 85 (3A) of the Finance Act 1994 relating to appeals to the Commissioner of Central Excise (Appeals) came up for consideration, after placing reliance upon the decision of the Supreme Court in Singh Enterprises observed that the discretion of the Commissioner to condone the delay is circumscribed by the conditions set out in the proviso and any delay beyond that period cannot be condoned. The relevant portion of the decision is reproduced below: "7. In order to appreciate the contentions advanced by the parties it would be appropriate to reproduce Section 85(3A) of the Finance Act which is as follows : "85. Appeals to the Commissioner of Central Excise (Appeals). - (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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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