TMI Blog2013 (9) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... able to the facts and circumstances of the case - following the judgement of Vijay Brothers & Others v. UOI [1988 (8) TMI 112 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH] - order set aside - directing the respondent to take the appeal on file and to dispose of the same on merits – order set aside - matter remanded back to the Commissioner (Appeals) to consider the issue involved in the matter on merit and thereafter pass an appropriate order after giving a reasonable opportunity to the assesse – Decided in favor of assesse. - C/309/2012 - A/674/2012-WZB/C-I(CSTB) - Dated:- 30-10-2012 - Shri Ashok Jindal and P.R. Chandrasekharan, JJ. Shri Ashwin Shete, Advocate, for the Appellant. Shri M.S. Reddy, Addl. Commissioner (AR), fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed within the condonable period of 30 days, therefore, the appeal was dismissed on the ground of limitation as time-barred. 2.1 The learned Counsel further submits that Section 14 of the Limitation Act prescribed that the time taken by the appellant in litigation on the subject before some other forum is to be excludable while counting the period for filing the appeal. He relied on the decision of the Hon ble Punjab Haryana High Court in the case of M/s. Vijay Brothers Others v. UOI reported in 1989 (40) E.L.T. 51 (P H). Therefore, he prayed that the impugned order is to be set aside. 3. On the other hand, learned Addl. Commissioner (AR) for the Revenue submits that Section 128 of the Customs Act, 1962 prescribes the time-lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 1987 to 18-3-2010 is excludable for limitation purpose or not? 5.1 The issue has been dealt by the Hon ble Punjab Haryana High Court in the case of M/s. Vijay Brothers (supra), wherein the appellant filed a Writ Petition before the Hon ble High Court of Punjab Haryana on May 9, 1976 against the order passed by the adjudicating authority on February 16, 1976. The said petition was objected by the Revenue on maintainability on the ground that there is an effective alternative remedy of appeal provided the Act and without exhausting that remedy, the writ petition could not be maintained and vide order dated 13-8-1976, the petition was dismissed. Thereafter, appellant filed SLP before the Hon ble Apex Court against the order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the appellant preferred LPA before the Division Bench. Thereafter the Hon ble High Court observed as under :- 14. In this case as we have already pointed out, the appellants questioned the validity of the original order in the earlier writ petition. The respondent took the objection that without exhausting the alternative remedy of appeal, the appellants shall not be permitted to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution. That contention was accepted both by this Court as also in the Supreme Court. After the disposal when the appellants filed the appeal before the Appellate Authority that appeal is now dismissed as not filed in time and the net result is the appellants did not have any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fides of the appellants in pursuing the remedy under Article 226 of the Constitution was never in dispute. In fact, the writ petition itself was filed within the period of three months from the date of the service of the order and there can be no doubt that it is in the view that the order was without jurisdiction they sought to invoke the jurisdiction of the High Court under Article 226 of the Constitution before filing an appeal and not to by press the appeal as such. 16. We, therefore, allow the appeal, set aside the order of the learned Judge and that of the second respondent, dated March 22, 1977, and the third respondent, dated December 21, 1978, directing the second respondent to take the appeal on file and to dispose of the same o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for filing the appeal before the Commissioner (Appeals) and the same cannot be extended. Therefore, the facts of that case are also not relevant. But, in this case, the contention of the appellant is that they challenged the adjudication order before the Hon ble High Court of Bombay in September, 1987 and the same has been disposed of by the Hon ble Bombay High Court on 18-3-2010 with a direction to the appellant to file an appeal within four weeks before the appellate authority. Therefore, the facts of the case of M/s. Vijay Brothers (supra) are applicable to the facts of the case in hand. Accordingly, we hold that the time taken by the appellant in litigation before the Hon ble Bombay High Court is to be excluded for calculating the time ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
