M/s ANUBHAV LOGISTICS vs CGST Kanpur

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD

REGIONAL BENCH - COURT NO.I

Service Tax Appeal No.70286 of 2026

(Arising out of Order-in-Appeal No.1417/ST/ALLD/2023 dated 07.11.2023
passed by Commissioner (Appeals) Customs, CGST & Central Excise,
Allahabad)

M/s Anubhav Logistics, …..Appellant
(Smt. Sonia Arora W/o Shri Prakhar Dubey,
R/o SA 6/172-E-2-F-106, Rudra Heights,
First Floor, Akatha, District-Varanasi)
VERSUS
Commissioner of Central Excise &
CGST, Kanpur ….Respondent
(38, M.G. Marg, Civil Lines, Allahabad-211001)
A PPEARANCE :
Absent on Call for the Appellant
Shri Surendra Ram, Authorized Representative for the Respondent

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

FINAL ORDER NO.- 70488/2026

DATE OF HEARING : 27.10.2026
DATE OF DECISION : 27.10.2026

SANJIV SRIVASTAVA:


This matter has been listed for hearing for the third time
today i.e. 27.10.2026. The matter has been adjourned on the
request of the Appellant on 21.08.2026 for providing certain
documents thereafter a request for adjournment has been made
on 18.09.2026 and when the matter is called today i.e.
27.10.2026 no one appeared and nor any request for
adjournment has been received from the Appellant.
2. In terms of proviso to Section 35 C (1A) of the Central
Excise Act, 1944 read with Section 83 of the Finance Act, 1994
matter could not be adjourned further.
2.1 The appeal is taken up for consideration after hearing Shri
Surendra Ram Authorized Representative appearing for the
Revenue.

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2
3. This appeal is filed against Order-in-Appeal
No.1417/ST/ALLD/2023 dated 07.11.2023 passed Commissioner
(Appeals) Customs, CGST & Central Excise, Allahabad. By the
impugned order following has been held:-
“4.2 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 19.05.2022 and filed the present appeal on 23.05.2023.
i.e., after a lapse of more than twelve 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 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 I find that in the instant case, the appellant has
requested for condonation of delay. Since, the

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3
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)
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]

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4
Appeal - Limitation - Power of High Court/Supreme
Court to condone delay - Supreme Court decision in
1998 (101) E.L.T . 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]”
4.1 I have considered the impugned order along with the
submissions made in appeal and during the course of arguments.
4.2 The issue involved in this appeal is well settled by the
Hon’ble Supreme Court in the case of M/s Singh Enterprises vs.
Commissioner of C. Ex., Jamshedpur reported in 2008 (221)
E.L.T. 163 (S.C.) referred in the impugned order.
4.3 In case of Glaxo Smithkline Consumer Health Care Ltd.
[2020 (36) G.S.T.L. 305 (SC)] Hon’ble Supreme Court has held
as follows:
15. We may now revert to the Full Bench decision of the
Andhra Pradesh High Court in Electronics Corporation of
India Ltd. (supra), which had adopted the view taken by
the Full Bench of the Gujarat High Court in Panoli
Intermediate (India) Pvt. Ltd. v. Union of India & Ors. [AIR
2015 Guj 97 = 2015 (326) E.L.T. 532 (Guj.)] and also of
the Karnataka High Court in Phoenix Plasts Company v.
Commissioner of Central Excise (Appeal-I), Bangalore
[2013 (298) E.L.T. 481 (Kar.)]. The logic applied in these
decisions proceeds on fallacious premise. For, these
decisions are premised on the logic that provision such as
Section 31 of the 1995 Act, cannot curtail the jurisdiction of
the High Court under Articles 226 and 227 of the
Constitution. This approach is faulty. It is not a matter of
taking away the jurisdiction of the High Court. In a given
case, the assessee may approach the High Court before the
statutory period of appeal expires to challenge the

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5
assessment order by way of writ petition on the ground that
the same is without jurisdiction or passed in excess of
jurisdiction - by overstepping or crossing the limits of
jurisdiction including in flagrant disregard of law and rules
of procedure or in violation of principles of natural justice,
where no procedure is specified. The High Court may
accede to such a challenge and can also non-suit the
petitioner on the ground that alternative efficacious remedy
is available and that be invoked by the writ petitioner.
However, if the writ petitioner choses to approach the High
Court after expiry of the maximum limitation period of 60
days prescribed under Section 31 of the 2005 Act, the High
Court cannot disregard the statutory period for redressal of
the grievance and entertain the writ petition of such a party
as a matter of course. Doing so would be in the teeth of the
principle underlying the dictum of a three-Judge Bench of
this Court in Oil and Natural Gas Corporation Limited
(supra). In other words, the fact that the High Court has
wide powers, does not mean that it would issue a writ
which may be inconsistent with the legislative intent
regarding the dispensation explicitly prescribed under
Section 31 of the 2005 Act. That would render the
legislative scheme and intention behind the stated provision
otiose.
16. The respondent had relied on the decision of this
Court in K.S. Rashid & Son v. The Income Tax Investigation
Commission [AIR 1954 SC 207]. This decision of the
Constitution Bench, no doubt, deals with the extent of
power of the High Court under Article 226 of the
Constitution and the situation when the High Court can
refuse to exercise its discretion, such as when alternative
efficacious remedy is available to the aggrieved party. In
paragraph 4 (last paragraph) of this decision, however, the
Court plainly noted that it was not necessary to express any
final opinion on the question as to whether Section 8(5) of
the Taxation on Income (Investigation Commission) Act,

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6
1947 (Act XXX of 1947) is to be regarded as providing the
only remedy available to the aggrieved party and that it
excludes altogether the remedy provided for under Article
226 of the Constitution.
17. Reliance was then placed on a three-Judge Bench
decision of this Court in ITC Ltd. & Anr. v. Union of India
[(1998) 8 SCC 610 = 1998 (101) E.L.T. 9 (S.C.)]. In that
case, the High Court had dismissed the writ petition on the
ground that the petitioner therein had an adequate
alternative remedy by way of an appeal under Section 35 of
the Central Excise Act. Concededly, this Court was pleased
to uphold that opinion of the High Court. However, whilst
considering the difficulty expressed by the petitioner
therein that the statutory remedy of appeal had now
become time barred during the pendency of the
proceedings before the High Court and before this Court,
the Court permitted the petitioner therein to resort to
remedy of statutory appeal and directed the appellate
authority to decide the appeal on merits. This obviously was
done on the basis of concession given by the Counsel
appearing for the Revenue as noted in paragraph 2(1) of
the order, which reads thus :-
“2. The High Court has dismissed the writ petition
filed by the petitioner on the ground that there is an
adequate alternative remedy by way of an appeal
under Section 35 of the Central Excise Act. Learned
Counsel for the petitioner submits that the petitioner
will face certain difficulties in pursuing this remedy :
(1) This remedy may not be any longer available to
it because the appeal has to be filed within a period
of three months from the date of the assessment
order and delay can be condoned only to the extent
of three more months by the Collector under Section
35 of the Act. It is pointed out that the petitioner did
not file an appeal because the Collector (Appeals) at
Madras had taken a view in a similar matter that an

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7
appeal was not maintainable. That apart, the
petitioner in view of the huge demand involved filed
a writ petition and so did not file an appeal. In the
circumstances of the case, we are of the opinion that
the ends of justice will be met if we permit the
petitioner to file a belated appeal within one month
from today with an application for condonation of
delay, whereon the appeal may be entertained.
Learned Counsel for the Revenue has stated before
us that the Revenue will not object to the
entertainment of the appeal on the ground that it is
barred by time. In view of this direction and
concession, the petitioner will have an effective
alternative remedy by way of an appeal.
(emphasis supplied)
In that case, it appears that the writ petition was filed
within statutory period and legal remedy was being pursued
in good faith by the assessee (appellant).
18. Suffice it to observe that this decision is on the facts
of that case and cannot be cited as a precedent in support
of an argument that the High Court is free to entertain the
writ petition assailing the assessment order even if filed
beyond the statutory period of maximum 60 days in filing
appeal. The remedy of appeal is creature of statute. If the
appeal is presented by the assessee beyond the extended
statutory limitation period of 60 days in terms of Section 31
of the 2005 Act and is, therefore, not entertained, it is
incomprehensible as to how it would become a case of
violation of fundamental right, much less statutory or legal
right as such.
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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8
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
judgment and order at all, but the High Court was more

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9
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.
20. Reverting to the contention that the respondent
having failed to assail the order passed by the appellate
authority, dated 25-10-2018 rejecting the application for
condonation of delay, the assessment order passed by the
Assistant Commissioner, dated 21-6-2017 stood merged,
need not detain us in view of the exposition of this Court in
Raja Mechanical Company Private Limited v. Commissioner
of Central Excise, Delhi-I [(2012) 12 SCC 613 = 2013 (29)
S.T.R. 81 (S.C.) = 2012 (279) E.L.T. 481 (S.C.)]. It is well
settled that rejection of delay application by the appellate
forum does not entail in merger of the assessment order
with that order.

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21. Taking any view of the matter, therefore, the High
Court ought not to have entertained the subject writ
petition filed by the respondent herein. The same deserved
to be rejected at the threshold.
4.4 Hon’ble Bombay High Court has in the case of Siddhi
Developers [2026 (395) E.L.T. 197 (Bom.)] held as follows:
“9. In this case, the Joint Commissioner, Central GST,
Pune-II Commissionerate, issued the Order-in-Original on
15 November 2019, which the Appellant received on 30
November 2019. The Appellant filed an appeal before the
Commissioner (Appeals) only on 17 March 2020, along with
an application for condonation of delay. The Commissioner
(Appeals), by his Order-in-Appeal dated 30 September
2020, dismissed the application for condonation of delay,
noting that it exceeded the period specified in the proviso
to sub-section (3A) of Section 85 of the Finance Act, 1994,
and therefore, he lacked the authority to condone this
delay.
10. The Appellant then appealed to the Customs, Excise
and Service Tax Appellate Tribunal, Mumbai (CESTAT), on 4
January 2021, which was dismissed on 10 May 2023.
11. Section 85(3A) of the Finance Act, 1994 reads as
follows :-
“(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.”

Service Tax Appeal No.70286 of 2026
11
12. From the above, it is evident that an appeal relating to
the Finance Act, 1994 must be presented within two
months from the date of receipt of the decision or order of
the adjudicating authority, if such decision or order has
been made after the Finance Bill, 2012 had received the
assent of the President. From the record, it is apparent that
the Order-in-Original dated 15 November 2019 was passed
after the receipt of assent of the President to the Finance
Bill, 2012.
13. The proviso to sub-section (3A) of Section 85,
however, empowers the appellate authority to condone the
delay in presentation of the appeal beyond the prescribed
period of limitation of two months, within a further period
of one month, if he is satisfied that the appellant was
prevented by sufficient cause from presenting the appeal
and the stipulated period of two months.
14. Therefore, on analysis of the provision above, what is
discernible is that an appeal is required to be filed within
two months from the date of receipt of the decision or
order, which period can be extended for a further period of
one month on sufficient cause being shown. Thus, in any
event, an appeal before the Commissioner (Appeals) must
be filed within a maximum period of three months. Any
delay beyond three months is not condonable by the
Commissioner (Appeals).
15. In the present case, the appeal was admittedly filed
more than three months after the original order was
communicated to the Appellant. Therefore, the
Commissioner (Appeals) was justified in dismissing this
appeal by invoking the bar of limitation and holding that he
lacked the power to condone the delay beyond three
months.
16. By reference to the provision of Section 35B of the
Central Excise Act, 1944, which is made applicable to
appeals before the Tribunal, the Appellant cannot bypass or
circumvent the clear and unambiguous provisions of sub-

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12
section (3A) of Section 85 of the Finance Act, 1994. The
provision under Section 35B(5) applies only to appeals
presented before the Tribunal, not to appeals presented
before the Commissioner (Appeals).
17. Similarly, the provisions of Section 35C(1), however
widely worded, do not empower the Tribunal to direct the
Commissioner (Appeals) to exercise powers that the
legislature has not vested in the Commissioner (Appeals).
By holding that it has no power to condone the delay
beyond three months, the Commissioner (Appeals) has
acted in accord with the provisions of sub-section (3A) of
Section 85 of the Finance Act, 1994. Therefore, the
Tribunal, by exercising the powers under Section 35C(1),
could not have either itself condoned the delay in filing an
appeal before the Commissioner (Appeals) or directed the
Commissioner (Appeals) to condone the delay beyond the
maximum prescribed period. The Tribunal was therefore
justified in finding no fault with the Commissioner
(Appeals)’s order dated 30 September 2020 and dismissing
the appeal against the same.
18. In Glaxo Smith Kline Consumer Health Care Limited
(supra), the Hon’ble Supreme Court has interpreted similar
provisions contained in Section 31 of the Andhra Pradesh
Value Added Tax Act, 2005 and held that the appellate
authority cannot condone delay if any appeal is preferred
after an aggregate period of 60 days. The Hon’ble Supreme
Court has held that the appellate authority is not
empowered to condone the delay in filing any appeal
preferred after the aggregate time period of 60 days. In
Abhyudaya Co-operative Bank Ltd. (supra), the Coordinate
Bench of this Court has also taken the same view.
19. The first question proposed by Mr. Jha, therefore,
does not arise and in any event, would have to be
answered against the Appellant.
20. Insofar as the second question proposed by Mr. Jha,
we are not shown any decisions of the Co-ordinate

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13
Benches. However, even if we assume that such decisions
exist, the Tribunal was justified in ignoring them, given the
law laid down by this Court in Abhyudaya Cooperative Bank
Ltd. (supra) and the Hon’ble Supreme Court in Glaxo Smith
Kline Consumer Health Care Limited (supra). Therefore,
even the second question of law does not arise, and in any
event, it will have to be decided against the Appellant.
21. For the above reasons, we find that this appeal raises
no substantial questions of law and, in any event, even the
proposed questions would have to be answered against the
Appellant.”
5. I do not see any merits in the appeal and the same is

dismissed.
(Dictated and pronounced in open court)

Sd/-
(SANJIV SRIVASTAVA)
MEMBER (TECHNICAL)
LKS