M/S RAJ KUMAR RASTOGI HUF vs CGST LUCKNOW

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD

REGIONAL BENCH - COURT NO.II

Service Tax Appeal No.70287 of 2026

(Arising out of Order-in-Appeal No.614-ST/APPL/LKO/2023 dated 23/08/2023
passed by Commissioner (Appeals) Customs, Central Excise & CGST,
Lucknow)

M/s Raj Kumar Rastogi HUF, …..Appellant
(3/507, Vivek Khand Gomti Nagar, Lucknow)
VERSUS
Commissioner of Central Excise &
CGST, Lucknow ….Respondent
(3/194, Vishal Khand-3, Gomti Nagar, Lucknow)

A PPEARANCE :
Shri Durgesh K. Maurya, Advocate for the Appellant
Shri Abhishek Mukharjee, Authorised Representative for the

Respondent

CORAM:
HON’BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)

FINAL ORDER NO.70324/2026

DATE OF HEARING : 02 September, 2026
DATE OF DECISION : 02 September, 2026


SANJIV SRIVASTAVA:

This appeal is directed against Order-in-Appeal No.614-
ST/APPL/LKO/2023 dated 23/08/2023 passed by Commissioner
(Appeals) Customs, Central Excise & CGST, Lucknow. By the
impugned order following has been held:-
“In this regard I find that Commissioner (Appeals) being
creature of law is bound by the machinery provisions
contained in the statute and cannot exceed the jurisdiction
contained in the statute. Thus, without going into merit of
the case, in the light of the statutory provision as above
the appeal is rejected on the ground of being time barred.”

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2

2.1 I have heard Shri Durgesh K. Maurya learned Counsel
appearing for the appellant and Shri Abhishek Mukharjee learned
Authorized Representative appearing for the revenue.
2.2 Learned Counsel for the appellant submits that:-
 the demand relates to HUF of Shri Raj Kumar Rastogi
whose PAN is ADTPR 3892B and the demand raised against
PAN No. AYIPS2047P which do not belong to him either in
capacity as individual or to his HUF.
 Appellant is senior citizen aged around 78 years. Due to
reason of medical exigencies the appeal before
Commissioner (Appeal) could not be filed in time. The
delay in filing the appeal be condoned.
2.3 Learned Authorized Representative reiterates the findings
recorded in the orders of the lower authorities.
3.1 I have considered the impugned order along with the
submissions made in appeal and during the course of arguments.
3.2 I find that the issue involved in the present appeal is with
respect of condonation of delay in filing the appeal before the
Commissioner (Appeals). In the present case the appeal has
been filed as observed by the Commissioner (Appeals) after
more than the stipulated time after the receipt of the order of
Original Authority. Section 85 (3A) of the Finance Act, 1994
provides as follows:
“SECTION 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 appeal
within the aforesaid period of two months, allow it to be
presented within a further period of one month.”

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In terms of the above, it is observed that the appeal was to be
filed before the Commissioner (Appeals) within two months of
the date of the receipt of the Order-in-Original by the appellant.
As per the proviso Commissioner (Appeals) has been granted the
power to condone delay of one month in filing the appeal on
sufficient cause being shown. In the present case appeal was
filed before the Commissioner (Appeal) after the stipulated time
from the date of receipt of Order-in-Original. Hence,
Commissioner (Appeals) has rightly held that appeal was filed
beyond the prescribed period of limitation and has dismissed the
same on this ground alone.
3.3 This issue is squarely covered by the decision of Hon’ble
Supreme Court in the case of M/s Singh Enterprises [ 2008 (221)
E.L.T. 163 (SC)] , wherein it has been held that Commissioner
(Appeals) could not condone the delay beyond the 30 days in
filing the appeal before him, relevant part of the said decision
are reproduced bellow for ready reference:-
“6. At this juncture, it is relevant to take note of Section 35
of the Act which reads 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
Commissioner of Central Excise, may appeal to the
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.
(2) Every appeal under this section shall be in the
prescribed form and shall be verified in the prescribed
manner.”

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7. It is to be noted that the periods “sixty days” and “thirty
days” have been substituted for “within three months” and
“three months” by Act 14 of 2001, with effect from 11-5-2001.
8. The Commissioner of Central Excise (Appeals) as also the
Tribunal being creatures of Statute are vested with jurisdiction
to condone the delay beyond the permissible period provided
under the Statute. The period upto which the prayer for
condonation can be accepted is statutorily provided. It was
submitted that the logic of Section 5 of the Indian Limitation
Act, 1963 (in short the „Limitation Act‟) can be availed for
condonation of delay. The first proviso to Section 35 makes the
position clear that the appeal has to be preferred within three
months from the date of communication to him of the decision
or order. 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
contend that the High Court and this Court in appropriate cases
condoned the delay on sufficient cause being shown.

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10. Sufficient cause is an expression which is found in various
statutes. It essentially means as adequate or enough. There
cannot be any straitjacket formula for accepting or rejecting the
explanation furnished for delay caused in taking steps. In the
instant case, the explanation offered for the abnormal delay of
nearly 20 months is that the appellant concern was practically
closed after 1998 and it was only opened for some short period.
From the application for condonation of delay, it appears that
the appellant has categorically accepted that on receipt of order
the same was immediately handed over to the consultant for
filing an appeal. If that is so, the plea that because of lack of
experience in business there was delay does not stand to be
reason. I.T.C.‟s case (supra) was rendered taking note of the
peculiar background facts of the case. In that case there was no
law declared by this Court that even though the Statute
prescribed a particular period of limitation, this Court can direct
condonation. That would render a specific provision providing for
limitation rather otiose. In any event, the causes shown for
condonation have no acceptable value. In that view of the
matter, the appeal deserves to be dismissed which we direct.
There will be no order as to costs.”
3.4 In case of Pathapati Subba Reddy (Died) By L.Rs. & Ors.
[Order dated 08.04.2024 in Special Leave Petition (Civil) No.
31248 Of 2018] after considering the past precedence Hon’ble
Supreme Court has held as follows:
26. On a harmonious consideration of the provisions of the
law, as aforesaid, and the law laid down by this Court, it is
evident that:
(i) Law of limitation is based upon public policy that
there should be an end to litigation by forfeiting
the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised
or availed of for a long time must come to an end
or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to be

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construed in a strict sense whereas Section 5 has to be
construed liberally;
(iv) In order to advance substantial justice, though
liberal approach, justice-oriented approach or
cause of substantial justice may be kept in mind
but the same cannot be used to defeat the
substantial law of limitation contained in Section
3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to
condone the delay if sufficient cause had been
explained, but that exercise of power is discretionary in
nature and may not be exercised even if sufficient
cause is established for various factors such as, where
there is inordinate delay, negligence and want of due
diligence;
(vi) Merely some persons obtained relief in similar matter,
it does not mean that others are also entitled to the
same benefit if the court is not satisfied with the cause
shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be
considered in condoning the delay; and
(viii) Delay condonation application has to be decided
on the parameters laid down for condoning the
delay and condoning the delay for the reason that
the conditions have been imposed, tantamounts
to disregarding the statutory provision.
3.5 In case of Glaxo Smith Kline Consumer Health Care Ltd.
[2020 (36) G.S.T.L. 305 (S.C.)] Hon’ble Supreme Court
observed as follows:
19 . Arguendo, reverting to the factual matrix of the
present case, it is noticed that the respondent had
asserted that it was not aware about the passing of
assessment order dated 21-6-2017 although it is admitted
that the same was served on the authorised representative
of the respondent on 22-6-2017. The date on which the

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respondent became aware about the order is not expressly
stated either in the application for condonation of delay
filed before the appellate authority, the affidavit filed in
support of the said application or for that matter, in the
memo of writ petition. On the other hand, it is seen that
the amount equivalent to 12.5% of the tax amount came
to be deposited on 12-9-2017 for and on behalf of
respondent, without filing an appeal and without any
demur - after the expiry of statutory period of maximum
60 days, prescribed under Section 31 of the 2005 Act. Not
only that, the respondent filed a formal application under
Rule 60 of the 2005 Rules on 8-5-2018 and pursued the
same in appeal, which was rejected on 17-8-2018.
Furthermore, the appeal in question against the
assessment order came to be filed only on 24-9-2018
without disclosing the date on which the respondent in fact
became aware about the existence of the assessment
order dated 21-6-2017. On the other hand, in the affidavit
of Mr. Sreedhar Routh, Site Director of the respondent-
company (filed in support of the application for
condonation of delay before the appellate authority), it is
stated that the company became aware about the
irregularities committed by its erring official (Mr. P. Sriram
Murthy) in the month of July, 2018, which pre-supposes
that the respondent must have become aware about the
assessment order, at least in July, 2018. In the same
affidavit, it is asserted that the respondent-company was
not aware about the assessment order, as it was not
brought to its notice by the employee concerned due to his
negligence. The respondent in the writ petition has averred
that the appeal was rejected by the appellate authority on
the ground that it had no power to condone the delay
beyond 30 days, when in fact, the order examines the
cause set out by the respondent and concludes that the
same was unsubstantiated by the respondent. That finding
has not been examined by the High Court in the impugned

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judgment and order at all, but the High Court was more
impressed by the fact that the respondent was in a
position to offer some explanation about the discrepancies
in respect of the volume of turnover and that the
respondent had already deposited 12.5% of the additional
amount in terms of the previous order passed by it. That
reason can have no bearing on the justification for non-
filing of the appeal within the statutory period. Notably,
the respondent had relied on the affidavit of the Site
Director and no affidavit of the concerned employee (P.
Sriram Murthy, Deputy Manager-Finance) or at least the
other employee [Siddhant Belgaonker, Senior Manager
(Finance)], who was associated with the erring employee
during the relevant period, has been filed in support of the
stand taken in the application for condonation of delay.
Pertinently, no finding has been recorded by the High
Court that it was a case of violation of principles of natural
justice or non-compliance of statutory requirements in any
manner. Be that as it may, since the statutory period
specified for filing of appeal had expired long back in
August, 2017 itself and the appeal came to be filed by the
respondent only on 24-9-2018, without substantiating the
plea about inability to file appeal within the prescribed
time, no indulgence could be shown to the respondent at
all.
3.6 Accordingly, I do not find any merits in this appeal filed by
the appellant.

4.1 Appeal is dismissed.
(Dictated and pronounced in open court)




(SANJIV SRIVASTAVA)
MEMBER (TECHNICAL)

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