TMI Blog2013 (11) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... pending before the High Court/Tribunal – the relief under Section 14 of the Act, 1963 depends upon bonafide and with due diligence pursuing the remedy before a court without jurisdiction - It would be decided after considering the fact and law of the case by a long process of reasoning, which is not permissible under ROM application – there was no reason for modification of order – Decided against Assessee. - E/213/2011, E/215/2011and E/214/2011 - MISC ORDER No.42674-42676/2013 - Dated:- 12-11-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant : Shri C. Saravanan, Advocate For the Respondent : Shri K.S.V.V. Prasad, JC (AR) JUDGEMENT Per P.K. Das 1. The applicant filed these applications for rectification of the mistake in Final Order No.40078-40080/2013 dt. 27.2.2013 passed by the Tribunal in appeal Nos.E/213-215/2011. 2. For the purpose of proper appreciation of the case, the relevant portion of the Final Order of the Tribunal is reproduced below :- 6. The main contention of the learned Senior Counsel for the appellants is that the original authority passed the order without complying the direction of the Tribunal and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It is well settled that the learned Commissioner (Appeals) has no power to condone the delay in filing the appeal beyond the period as prescribed under proviso to Section 35(1) of the Act, 1944. Admittedly, the appeals were filed beyond the stipulated period under proviso to Section 35(1) of the Act, 1944. Hence, we find that there is no need to discuss the matter on merits as the appeals were dismissed as time-barred by the Commissioner (Appeals). 8. In view of the above discussions, we do not find any infirmity on the order of the Commissioner (Appeals). Accordingly, all the appeals are dismissed and stay applications are disposed of. 3. In the instant applications, the applicants pray as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Tribunal, while passing the final order had observed that the adjudicating authority had complied with Tribunals remand order and passed denovo adjudication order, which is incorrect. He submits that it is apparent on the face of record that the adjudicating authority had not complied with Tribunal s order as the relied upon documents were not supplied to them. So the Tribunal s finding on this issue is incorrect. 4.2 He further draws our attention to para-5 of the Tribunals final order, wherein it is recorded that the department has supplied the documents. It is submitted that such finding is contrary to records as available. It is also recorded in the final order that duty has been confirmed only on the basis of documents available with the department. It is also incorrect. 4.3 He also relies on the decision of Hon ble Supreme court in the case of Steel Authority of India Ltd. Vs CCE - 1996 (82) ELT 172 (SC) and Coal India Ltd. Anr. Vs Ujjal Transport Agency unreported Judgement dt. 21.10.2010 in Civil Appeal No.8703 of 2010 [arising out of SLP (C) No.17401/2010]. He also relied on the Hon ble Bombay High Court s unreported judgement dated 5/6th July 2011 in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover, incorrect application of law can also not be corrected. 7. In the present case, we find that the Commissioner (Appeals) dismissed the appeal filed by the applicant without going into the merit, on the ground that the appeals were filed beyond the time limit prescribed under Section 35(1) of the Central Excise Act, 1944. On a perusal of the final order dt. 15.4.2013 of the Tribunal, we find that the Tribunal also dismissed the appeals without going into the merit and upheld the order of the Commissioner (Appeals). It is seen that the Tribunal had given detailed finding as stated above on the limitation and also relied on Supreme Court s decision. The Tribunal at para-5 of the Final Order, recorded the findings of the adjudicating authority in respect of supply of documents. So, the submission of Ld. Advocate on supply of documents is not sustainable. 8. The other contention of the learned advocate is that in view of Section 14 (2) of the Limitation Act, the period from 20.4.2009 to 29.12.2009, when the matter was pending before the Tribunal, would be excluded while computing the period of limitation, before the Commissioner (Appeals). Section 14 of the Limitation Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed the application as time barred. After considering the due diligence and bonafide of pursuing the remedy before a wrong forum, the Hon ble Supreme Court condoned the delay by invoking Section 14 of the Limitation Act, 1963. 10.2 In the case of Rajkumar Shivhare (supra), the appellant filed Writ Petition before the Hon ble Delhi High Court instead of filing appeal under Foreign Exchange Management Act, 1999. The Hon ble High Court dismissed the writ petition and then the matter went upto the Hon ble Supreme Court. The Apex Court in its Judgement dismissed the appeal and held that the appellant was bonafide pursuing his case under Article 226 of the Constitution of India before the Delhi High Court and thereupon in appeal before the Supreme Court. Hon ble Bombay High Court condoned the delay of filing of appeal by invoking Section 14 of the Limitation Act, 1963. 11. In the present case, we have already discussed that during the intervening period, no appeal/writ petition was pending before the High Court/Tribunal. The Hon ble Supreme Court in the case of Coal India Ltd. Anr. (supra) observed that the relief under Section 14 of the Act, 1963 depends upon bonafide and with du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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