SHRI MOHD ARSHAD ANASARI vs ALLAHABAD

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD

REGIONAL BENCH - COURT NO.II

Service Tax Appeal No.70176 of 2026

(Arising out of Order-in-Appeal No.311/ST/Alld/2024 dated 05/06/2024
passed by Commissioner (Appeals) Customs, Central Excise & Service Tax,
Allahabad)

M/s Mohd Arshad Ansari, …..Appellant
(1, Jalalpur Station Road,
SRN, Badohi-221401)
VERSUS
Commissioner of Central Excise &
CGST, Allahabad ….Respondent
(38, MG Marg, Civil Lines, Prayagraj)

A PPEARANCE :
Ms Prerna Surolia, holding brief of Counsel on record for the Appellant
Smt Chitra Srivastava, Authorised Representative for the Respondent


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

FINAL ORDER NO.70486/2026

DATE OF HEARING : 22 July, 2026
DATE OF PRONOUNCEMENT : 26 October, 2026


SANJIV SRIVASTAVA:

This appeal is directed against Order-in-Appeal
No.311/ST/Alld/2024 dated 05/06/2024 passed by
Commissioner (Appeals) Customs, Central Excise & Service Tax,
Allahabad. By the impugned order following has been held:-
“4.1.1 The appellant has filed the present appeal after
more than eleven months on 28.02.2024 from the date of
passing of impugned order i.e 11.03.2023. The appellant
has claimed that he has received the impugned order on
29.01.2024. However, no documentary evidence has been
provided by the appellant in support of their claim.

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2

4.1.2 Since there was sufficient time gap in the dates of
passing the impugned Order and of receiving the same,
the Assistant Commissioner, CGST & Central Excise
Division Jaunpur was, therefore, requested to clarify
regarding mode & date of service of the impugned Order,
vide letter dated 29.04.2024. The Superintendent (Adj),
CGST & Central Excise Division-Jaunpur vide letter dated
27.05.2024 has informed that the impugned order was
sent to the appellant through registered post bearing no.
RU556979362IN which was returned undelivered to their
office and thereafter the impugned order was served upon
the appellant by way of chaspa on the-main-door of the
appellant premises through panchnama dated 27.04.2023.
4.1.3 Thus, the claim of the appellant to have received the
impugned order on 29.01.2024 is factually incorrect as the
impugned order dated 11.03.2023 was served upon the
appellant on 27.04.2023 itself through Panchnama dated
27.04.2023.
4.2 I find that the prescribed time limit to file the appeal is
specified as two months under Section 85(3A) of the Act,
and therefore, the present appeal filed by the appellant is
beyond the time limit specified under Section 85(3A) of the
Act inasmuch as they have received the impugned Order
on 27.04.2023 and filed the present appeal on 28.02.2024.
l.e., after a lapse of ten months and beyond the time limit
specified under Section 85(3A) of the Act, which provides
as under:
Section 85(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

Service Tax Appeal No.70176 of 2026
3

within the aforesaid period of two months, allow it to be
presented within a further period of one month.
4.3 The above statutory provisions restrict any appeal to
be filed within a period of two months from the date of
receipt of the decision or order of the Adjudicating
Authority and the proviso to Section 85(3A) of the Act
above empowers the Commissioner of Central Excise
(Appeals), to allow the appeal to be filed within a further
period of one month, if he is satisfied that the appellant
was prevented by sufficient cause for presenting the
appeal within the aforesaid period of two month.
4.4 The Commissioner (Appeals) can condone the delay of
one month only and the delay in the instant case is much
beyond this time limit, I find that the appeal filed by the
appellant beyond the prescribed time limit, is time barred
and as such, is liable for dismissal.
4.5 Even the Hon'ble Supreme Court in the case of M/s
Singh Enterprises vs. Commissioner of Central Excise,
Jamshedpur 2008 (221) E.L.T. 163 (SC), inter alia, held,
as under:

Appeal to Commissioner (Appeals) - Limitation -
Condonation of delay Appeal filed after 21 months
from date of service of order dismissed by
Commissioner (Appeals) - Writ petition filed against
impugned order dismissed by High Court Appeal to
be filed within 60 days from date of communication
of order Delay condonable further period of 30 days
on sufficient cause being shown- Appellate authority
having no power to allow appeal presented beyond
the said 30 days - Impugned orders sustainable -
Section 35 of Central Excise Act, 1944. (paras 2, 3,
8)
Appeal to Commissioner (Appeals) Limitation Appeal
to be filed within 60 days from date of
communication of order Commissioner (Appeals)

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4

empowered to condone delay of further period of 30
days only Section 5 of Limitation Act, 1963 not
applicable Section 35 of Central Excise Act, 1944.-
The proviso to sub-section (1) of Section 35 ibid
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. [para 8]
Appeal Limitation - Power of High Court/Supreme
Court to condone delay -Supreme Court decision in
1998 (101) E.LT. 9 (S.C.) on condonation of delay in
filing appeal - No law declared in the impugned
decision to the effect that Supreme Court can direct
condonation even when the statute prescribed
particular period of limitation Such stand would
render specific provision providing for limitation
rather otiose Section 35 of Central Excise Act, 1944.
(para 10)”
2.1 On the basis of information received from Income Tax
Department, it was observed that appellant has short paid
service tax as detailed in table below:-
Financia
l Year
Sale of
services
as per
third
party
data
Revenue
from
operatio
n as per
Balance
Sheet
Taxabl
e
receipt
in
Form
26 AS
Gross
receipt
against
sale of
service
as
declared
in ITR
Higher
value out
of (2),
(3), (4)
& (5)
Service
Tax
payable
@ 15%
(incl.
cesses)
Servic
e Tax
paid
as per
ST-3
return
s
Service
tax not
paid
(1) (2) (3) (4) (5) (6) (7) (8) (9)
2016-
17
1640029
5
N.A. N.A. 1640029
5
1640029
5
246004
4
N.A. 246004
4
2.3 After making inquiries, show cause notice dated
20.10.2021 was issued to the appellant, asking them to show
cause as to why:-
“(i) Service Tax liability of Rs.2460044/ should not be
demanded and recovered from them under the proviso to

Service Tax Appeal No.70176 of 2026
5

the section 73 (1) of the Finance Act, 1994, read with
Section 68 & 66B.
(ii) of the Finance Act, 1994 as amended. Interest should
not be demanded and recovered from them at the
appropriate rates under Section 75 of the Act.
(iii) Penalty should not be imposed upon him/them under
Section 78 of the Act, for the suppression of facts from the
department.
(iv) Penalty should not be imposed upon them/him under
Section 77(1)(a) of the Act for not obtaining service tax
registration within stipulated time under Section 69 of the
Finance Act, 1994 read with Rule 4 of Service Tax Rules,
1994
(v) Penalty should not be imposed upon them under
Section 77(2) of the Act read with Rule 7 of the Service
Tax Rules, 1994 for not submitting ST-3 return.
(vi) Penalty should not be imposed upon them/him under
77(1) (c) of the Act, for not furnishing
information/documents called by the department.”
2.4 The said show cause notice was adjudicated as per the
Order-in-Original dated 11.03.2023 holding as follows:-
“5.8 In view of above discussion, my findings may be
summarized as under:
(i) The party is liable to pay service tax of Rs.2460044/-
as quantified in the SCN.
(ii) The due interest on the amount as mentioned at (i)
above should be charged and recovered under the
provision of Section 75 of the Finance Act, 1994.
(iii) Penalty should be imposed under Section 78 of the
Finance Act, 1994. For failure to pay service tax &
suppressing the facts and value of taxable service with
intent to evade payment of service tax.
(iv) Penalty should he imposed under Section 77(1)(a) of
the Finance Act, 1994 for non taking registration.

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6

(v) Penalty should be imposed under Section 77(2) of the
Finance Act, 1994 for not submitting ST-3 returns and
contravention of Rule 7 of the Service Tax Rules, 1994.
(vi) Penalty should be imposed under Section 77(1)(c) of
the Finance Act, 1994 for not furnishing the
information/documents called by the department.
5.9 Accordingly, I pass the following order-
(i) I impose demand of service tax of Rs.2460044/- upon
the party under Section 77 of the Finance Act, 1994,
along with interest under the provision of Section 75 of
the Finance Act, 1994.
(ii) I impose a penalty of Rs.2460044/- upon the party
under the provision of Section 78 of the Finance Act,
1994. The party shall be liable for reduced penalty
specified in second and third proviso to section 78 of
the Finance Act, 1994, subject to fulfillment of
conditions specified therein.
(iii) I impose a penalty of Rs.10,000/- under Section
77(1)(a) of the Finance Act, 1994.
(iv) l impose a penalty of Rs.10,000/- under Section 77(2)
of the Finance Act, 1994.
(v) I impose a penalty of Rs.10,000/- under Section
77(1)(c) of the Finance Act, 1994,”
2.5 Aggrieved appellant have filed appeal before Commissioner
(Appeals) which has been dismissed as per the impugned order
referred in para 1 above.
2.6 Aggrieved appellant have filed this appeal.
3.1 I have heard Ms Prerna Surolia holding brief of Counsel on
record and Smt Chitra Srivastava learned Authorised
Representative appearing for the revenue.
3.2 Arguing for the appellant learned Counsel submits that-
 The appeal has been dismissed on the ground of limitation
holding that the same was filed much beyond the
condonable period of limitation by Commissioner
(Appeals).

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7

 Impugned Order noted that on verification by the
Commissioner (Appeals), revenue authorities has informed
that as the impugned order was not returned back by the
postal authorities, the same was pasted at the premises of
the appellant under Panchnama. However, they were not
provided copy of Panchnama to the appellant, for this
reason only the appeal should be allowed.
3.3 Learned Authorised Representative reiterates the findings
recorded in the orders of the lower authorities.
4.1 I have considered the impugned orders along with the
submissions made in appeal and during the course of argument.
4.2 In para-22 of the appeal memo filed before the
Commissioner (Appeals), appellant has recorded as follows:-
“22. That the appellant submits that, the adjudication
order was although signed on 11-03-2023 but was never
received by the him. But on 29/01/2024, when he visited
the Office of Assistant Commissioner, Jaunpur for some
other work, he became aware of the fact that an order of
demand was passed by the said office on 11/03/2023.
Since he has not received any order copy, he requested to
get a copy of the Order in Original to the officers present
there. Consequently, he got only an un-certified photo of
the said order from the file. Since he received the order on
29/01/2024, the date of receipt of the order for the
purpose of filing appeal should be 29/01/2024 only.”
4.3 I observe that appellant has a registered premises with the
address-1, Jalalpur Station Road, S.R.N., Bhadohi, U.P.-221401
and the same address is mentioned in the appeal memo filed
before this Tribunal and Commissioner (Appeals) also. It is also
observed that the Order-in-Original and the Order-in-Appeal
were sent to the appellant at the same address. Even in the
challans for payment of pre-deposit, the same address is
mentioned. It is interesting to note that even when the Order-in-
Appeal was sent by post to the appellant, the same was returned
and a letter dated 09.07.2024 written by Superintendent
(Appeals) is reproduced below:-

Service Tax Appeal No.70176 of 2026
8


4.4 It appears that the address in all posts being sent at the
registered address of the appellant are returned back by the post
office for the reason that no one is available or found. In the
present appeal, it is evident that the Order-in-Original after
being returned was got served by way of Chaspa on the
registered premises of the appellant under Panchnama dated
27.04.2021. The dispatch order refers the report received from
the jurisdictional officer. In this regard Section 77 (e) of the
Bhartiya Sakshya Adhiniyam, 2023 reads as follows:-
“(e) the proceedings of a municipal or local body in a
State, by a copy of such proceedings, certified by the legal
keeper thereof, or by a printed book purporting to be
published by the authority of such body;”
4.5 On perusal of the said Section in para-metiria with Section
79 & 80 of the earlier Evidence Act, on the basis of above
Commissioner (Appeals) cannot be faulted for presuming the
correctness of the facts stated in the letter certifying that the
said Order-in-Original was duly served on the appellant on
27.04.2021 through Chaspa under a Panchnama of the same
date. This is a admissible piece of evidence and which could be
duly relied for any proceedings and if presume correct.

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9

4.6 As the order was served by Chaspa on the registered
premises which appellant continue to hold, I do not find any
reason to believe that the order was not served or received by
the appellant. Even being pasted on his premises, the argument
sought to be made needs to be rejected.
4.7 This issue is squarely covered by the decision of Hon’ble
Supreme Court in the case of M/s Singh Enterprises [ 2008 (221)
, wherein it has been held that Commissioner
E.L.T. 163 (SC)]
(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.”
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

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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.
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

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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.”
4.8 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
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;

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(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.
4.9 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
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

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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
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

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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.
4.10 Accordingly, I do not find any merits in this appeal filed by
the appellant.
5.1 Appeal is dismissed.
(Order pronounced in open court on-26 October, 2026)



(SANJIV SRIVASTAVA)
MEMBER (TECHNICAL)


akp