DHARMENDRA BHANDARI vs COMMISSIONER OF CENTRAL EXCISE & CGST-JAIPUR

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH- COURT NO. IV
Service Tax Appeal No. 55324 of 2023

(Arising out of Order-in-Appeal No. 313(RLM)ST/JPR/2022 dated 30.12.2022 passed by
the Commissioner (Appeals), Customs, Central Excise & Central Goods and Service Tax,
Jaipur.)
Mr. Dharmendra Bhandari .…Appellant
Flat No. 203, Lodha Grandeur,
Sayani Road, Opp. Parel ST Depot,
Earlier Address: B-44, Malviya Nagar,
Jaipur-302017
Versus

The Commissioner (Appeals), .…Respondent
Office of Commissioner (Appeals), Central
Excise & Central Goods and Service Tax Commissionerate,
Jaipur
NCR Building, Statue Circle,
Jaipur-302005(Rajasthan)

APPEARANCE:
Mr. Yash Dhadda, Advocate for the Appellant
Ms. Jaya Kumari, Authorised Representative of the Department

CORAM:
HON’BLE MR. AJAY SHARMA, MEMBER (JUDICIAL)
HON’BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL )

DATE OF HEARING/ DECISION: November 05, 2026
FINAL ORDER NO. 51679/2026

P.V. SUBBA RAO:
1
This appeal has been filed by Shri Dharmendra Bhandari to assail
the order dated 30.12.2022 passed by the Commissioner (Appeals),
Customs, Central Excise and CGST, Jaipur in which he rejected the
appellant’s appeal against the order of the Deputy Commissioner dated
03.06.2019 only on the ground of limitation. He did not record any
findings on the merits of the appeal.
2. We have heard learned counsel for the appellant and learned
authorised representative for Revenue and perused the records.
3. The case of the appellant is that when they were registered they
were operating from Jaipur and, thereafter they have stopped their
business and moved to Mumbai. The show cause notice as well as the

1 The Appellant

2

Order-in-Original of the Deputy Commissioner were addressed to their
Jaipur address. Therefore, the appellant never received either the show
cause notice or the Order-in-Original. The appellant did not appear
before the Deputy Commissioner. The appellant was also unaware of the
order passed by the Deputy Commissioner.
4. Later, the recovery notice was sent to the appellant both at its
Jaipur address and at its the Bombay address and Reminder II dated
23.11.2021 of which is placed at page 45 of the appeal. Since the
appellant was residing in Mumbai during the period, he received a copy
of this recovery notice and then sought and obtained a copy of the
Order-in-Original and then filed an appeal. According to the appellant,
the date of communication of the order of the Deputy Commissioner
dated 03.06.2019 was 19.01.2022 and immediately thereafter, the
appellant took steps and filed an appeal before the Commissioner within
a period of 30 days on 18.02.2022. Therefore, there was no delay in
filing the appeal at all.
5. Learned authorised representative for Revenue vehemently
supported the order of the Commissioner (Appeals) in which he recorded
that the order of the Deputy Commissioner was dispatched on
03.06.2019 itself by registered speed post at the registered address of
the appellant and it was never returned undelivered. Therefore, he
correctly presumed that the order was served in 2019 itself. For this
reason, the appeal filed by the appellant before the Commissioner
(Appeals) on 18.02.2022 was badly barred by limitation and it was
beyond the condonable period of the limitation as well. Therefore, the
Commissioner (Appeals), has correctly rejected the appeal as being time
barred.
6. We have considered the submissions advanced by both sides and
perused the records. Section 85(3A) of the Finance Act, 1994 which

3

deals with the limitation for filing the appeal before the Commissioner
(Appeals) is reproduced below:
“'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.”

7. As is clear from the above, the appeal has to be filed within two
months from the date of receipt of decision of the order of the
Adjudicating Authority. There is no evidence on record to show that the
order was received by the appellant before 19.01.2022. The only
submission of the Revenue is that the order was dispatched and it was
not returned by the Postal Authority. Section 85(3A) of the Finance Act
does not start the limitation from the date of dispatch and it also does
not presume that an order which has dispatched has been received by
the assessee. The date of receipt of the decision or order is material in
this regard. If that date is considered is as 19.01.2022, there would not
be any delay.
8. Learned authorised representative for Revenue also submitted that
the appellant had not filed any application before the Commissioner
(Appeals) explaining the facts and the reasons for the delay and why the
appellant had not received the order of the Deputy Commissioner or
about the change of his address, etc.
9. After considering the submissions from both sides, we consider the
matter fit to be remanded to the Commissioner (Appeals) to decide the

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appeal on merits. We also direct the appellant to file an appropriate
application before the Commissioner (Appeals) explaining all the facts as
above and the reasons for delay in filing the appeal.
10. The appeal is allowed by way of remand to the Commissioner
(Appeals).
(Order dictated in the Open Court)

((AJAY SHARMA)
MEMBER (JUDICIAL)



(P.V. SUBBA RAO)

MEMBER (TECHNICAL)


Shenaj