SUMAN THAKURI vs SILIGURI-APPEAL

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH: KOLKATA

REGIONAL BENCH – COURT NO. 2

Service Tax Miscellaneous Application No. 75252 of 2026
(on behalf of Appellant)
Service Tax Miscellaneous [COD] Application No. 75401 of 2026
(on behalf of Appellant)
IN
Service Tax Appeal No. 75766 of 2026
[pertaining to Appeal Diary No. 757502026-ST]
(Arising out of Order-in-Appeal No. 265/SLG-ST/2024-25 dated 07.11.2024 passed by
the Commissioner of Appeal, C.G.S.T. and C.X., Siliguri (Appeal) Commissionerate,
G.S.T. Bhawan, H.M. Road, Hakimpara, Siliguri – 734 001)

M/s. Suman Thakuri
Peshok Road, Ghoom,
Jorebunglow, Darjeeling,
PIN – 734 102
: Applicant /
Appellant

VERSUS

Commissioner of C.G.S.T. and Central Excise
Siliguri Commissionerate,
C.R. Building, Haren Mukherjee Road, Hakimpara, Siliguri,
PIN – 734 001
: Respondent

APPEARANCE:
Shri Boudhayan Bhattacharyya, Advocate
Ms. Stuti Bansal, Advocate,
Ms. Chayna Kumary, Advocate,
Ms. Shubhangi Banerjee, Advocate
For the Appellant / Applicant

Shri Argho Mukherjee, Authorized Representative,
For the Respondent

CORAM:
HON’BLE SHRI R. MURALIDHAR, MEMBER (JUDICIAL)
HON’BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL)

FINAL ORDER NO. 76140 / 2026
DATE OF HEARING / DECISION: 02.09.2026

Page 2 of 5

Appln. No(s).: ST/75252 & 75401/2026
Appeal No.: ST/75766/2026-DB


ORDER: [ PER SHRI R. MURALIDHAR ]
The appellants have filed a Misc. Petition
seeking Early Hearing of the COD Petition. Considering
the request, we have allowed the Misc. Petition
seeking Early Hearing of the COD Petition. The Misc.
Petition towards the COD Petition was taken up for
disposal with the consent of the Ld. Authorized
Representative of the Revenue.
1.1. The appellant has filed this appeal with a delay
of about 402 days. Being satisfied with the
explanation given by the Ld. Counsel appearing on
behalf of the appellant, we condone the delay and
allow this Misc. petition.
2. At this juncture, the Ld. Authorized
Representative for the Revenue points out that vide
the impugned order, the Ld. Commissioner (Appeals)
has dismissed the appeal filed by the appellant on the
sole ground that the said appeal had been filed much
beyond the appealable period plus the condonable
period i.e., after 90 days.
2.1. We have gone through the impugned Order-in-
Appeal. We find that the appellant has received the
Order-in-Original dated 27.09.2023 on 04.10.2023.
The appellant had time till about 04.12.2023 to file
the appeal before the Commissioner (Appeals) within
the normal appealable period, whereafter they had
another 30 days till about 04.01.2024 to file the
appeal along with a COD petition before the
Commissioner (Appeals). However, it is on record and
also an admitted fact that the appellant has filed the
appeal before the Commissioner (Appeals) on
01.03.2024. The appeal has been filed before him

Page 3 of 5

Appln. No(s).: ST/75252 & 75401/2026
Appeal No.: ST/75766/2026-DB


almost after 116 days from the date of receipt of the
OIO.
3. On going through the said Order-in-Appeal, we
find that the Ld. Commissioner (Appeals) has held as
under: -
“2.2 Ongoing through the appeal petition, it is
observed that the Appellant mentioned the date of
communication of the Impugned Order as
"04.10.2023", whereas the appeal was filed on
01.03.2024, which is more than 04 months and 26
days later, exceeded the maximum time limit
allowable for filing an appeal as per Section 85[3A]
of the Finance Act, 1994.
2.3 The relevant portion of Section 85 of the Finance
Act, 1994 is reproduced herein below:
"[(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.]"
2.4 As per the above provision, the Appellant was
required to file the appeal petition to the
Commissioner (Appeals) within two months from the
date of the communication of the Impugned Order.
However, it's apparent that the Appellant filed the
Appeal petition beyond the stipulated two months
period. Further, it is evident that while a delay of up
to one month may be condoned provided the delay
is for one month. However, in the instant case, the
delay in filing Appeal petition has exceeded the
permissible condonation period. In any case, as per
the provision, the undersigned is not empowered to
condone such delay after the expiry of one month.”

Page 4 of 5

Appln. No(s).: ST/75252 & 75401/2026
Appeal No.: ST/75766/2026-DB


4. The issue as to whether the delay beyond 90
days can be condoned or not is no more res integra .
The Hon’ble Apex Court in the case of M/s. Singh
Enterprises v. Commissioner of C.Ex., Jamshedpur
[2008 (221) E.L.T. 163 (S.C.)] has held as under: -
“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.”
[Emphasis supplied]
5. Therefore, we do not find any reason to interfere
with the considered and proper order passed by the
Ld. Commissioner (Appeals).

Page 5 of 5

Appln. No(s).: ST/75252 & 75401/2026
Appeal No.: ST/75766/2026-DB


6. Accordingly, we dismiss the appeal filed by the
appellant. The miscellaneous applications filed by the
appellant also stand disposed of.
(Dictated and pronounced in the open court)



(R. MURALIDHAR)
MEMBER (JUDICIAL)



(K. ANPAZHAKAN)
MEMBER (TECHNICAL)
Sd/-
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