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2015 (9) TMI 725 - JHARKHAND HIGH COURT

2015 (9) TMI 725 - JHARKHAND HIGH COURT - TMI - Condonation of delay - delay in appeal filed before the commissioner (appeals) - exclusion of period spent in pursuing writ remedy before HC - writ was dismissed by the HC earlier for want of jurisdiction - Held that:- Prima-facie Section 14 of the Limitation Act 1963 is not applicable because there was no want of jurisdiction where the writ petition was preferred. Normally, the assesses are taking a chance by filing a matter directly in the High C .....

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15-7-2015 - D. N. Patel And Ratnaker Bhengra, JJ. For the Petitioner : Mr S K Verma For the Respondent : Mr Ratnesh Kumar JUDGMENT Per D. N. Patel, J. 1) Instant writ petition has been preferred against the order dated 16th October, 2014 passed by Commissioner (Appeals) in Appeal Nos. 107 to 114 / RAN / 2014 whereby the appeals preferred by the appellants, including this petitioner, have been dismissed mainly on the ground that these appeals have been preferred beyond the period of condonable de .....

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These batch of writ petitions were disposed of by this Court vide order dated 3rd September, 2013 and, therefore, appeals were preferred against the order in original passed by Additional Commissioner, Central Excise, Ranchi by the petitioners claiming benefit of Section 14 of the Limitation Act of 1963, to exclude the time consumed in disposal of the writ petition before this Court in computation of the delay. Counsel for the petitioner has relied upon the decision rendered by the Hon'ble S .....

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that Section 14(2) of the Limitation Act 1963 is applicable for condonation of delay by the Commissioner (Appeals). This aspect of the matter has not been properly appreciated by the Commissioner (Appeals) and, therefore, this petition has been preferred. It has been submitted that delay may be condoned which is approximately of 16 months and the matter may be remanded to the Commissioner (Appeals) for its decision on merits. 3) Counsel for the respondents has submitted that no error has been c .....

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as well as interest under section 75 of the Finance Act, 1994 has also been affirmed. There was violation of certain circulars and rules of the Finance Act, 1994. Penalty was also affirmed under Section 77 of the Finance Act, 1994.Thus, there was no ambiguity at all. So far as liability of this petitioner is concerned in the order in original passed by Additional Commissioner, Central Excise, Ranchi this petitioner could have prefer appeal within 60 days+30 days maximum otherwise, if the appeal .....

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t-Union of India that though order in original was passed on 31st December, 2012 which clearly affirms the demand notice issued upon this petitioner including interest and penalty, this petitioner preferred a writ petition before this Court being W.P.(T) No.7713 of 2013 on 17th December, 2013 which was dismissed vide order dated 25th March, 2014. Thus, no benefit of Section 14(2) of the Limitation Act, 1963 can be given to this petitioner. As such, no error has been committed by the Commissioner .....

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uot;chance taking petitioner." This aspects of the matter have been taken care of by deciding the matters in terms of reported decisions as stated hereinabove. Hence, this writ petition may not be entertained by this Court. 4) Having heard counsel for both sides and looking to the facts and circumstances of the case we see no reason to entertain this writ petition mainly on the following facts and reasons :- (i) Order in original was passed by Additional Commissioner Central Excise on 31st .....

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which the order in original was passed. For ready reference Section 85 of the Finance Act, 1994 reads as under: "85. Appeals to the [Commissioner] of Central Excise (Appeals) - [(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the [Principal Commissioner of Central Excise or Commissioner of Central Excise], may appeal to the Commissioner of Central Excise (Appeals)] (2) Every appeal shall be in the prescribed form and shall be verified in .....

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id period of three months, allow it to be presented within a further period of three months. [(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 sufficien .....

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n affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the [Commissioner] of Central Excise (appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the [Central Excises Act,1944] (1 of 1944)." (Emphasis supplied) In view of the aforesaid decision and .....

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statutorily prescribed period, therefore, the writ petition was without merit. Before the high Court reliance was placed on a decision of this Court in ITC Ltd. V. Union of India to contend that the high Court had the power to condone the delay. This stand was not accepted by the High Court. 4. In support of the appeal, learned counsel for the appellant submitted that even if it is conceded for the sake of argument that the Commissioner had no power to condone the delay, yet the High Court in ex .....

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d 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) [hereinafter 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 day .....

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statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the 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 commun .....

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(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 up to 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 Hig .....

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t 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 the appellant has categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. .....

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e value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs. (Emphasis supplied) (iii) Looking to Section 14 of the Limitation Act, 1963 the said Section is also not applicable in the facts of the present case because the Writ Petition (T) No. 7713 of 2013 was preferred by this petitioner before this Court on 17th December, 2013 which was dismissed vide order dated 25th March, 2014. Thus, writ petition which was also preferred afte .....

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. (v) There is tendency of those persons who are liable to make payment of the tax+interest+ penalty to take a chance before this Court. This "chance taking petitioner" has filed a writ petition before this Court at his own peril and risk because some times it takes time for final adjudication of the writ and on another hand the period of limitation has already been started. It ought to be kept in mind by this type of "chance taking petitioner" that they should simultaneously .....

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r:- "14. Exclusion of time of proceeding bona fide in court without jurisdiction :- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause .....

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ithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure , 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature." As stated herein above writ petition was preferred on 17th December, 2013 .....

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tion the benefit can be given to the party who is preferring appeal at the slightly belated stage. (vii) Looking to the decision rendered by Hon'ble Bombay High Court in the writ petition no. 1830 of 2013 with Writ Petition (Civil) No. 3419 of 2014 the judgment and order dated 24th December, 2014, Para 30,33 and 44 reads as under:- "30) We have already held that by sub-section (2) of section 29 of the Limitation Act, 1963 and applying it to the facts of the present case, sections 4 to 2 .....

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15 SCC 30. We have perused this judgment very carefully and minutely. 33) We are unable to agree with Mr. Dhond that this judgment would enable us to conclude that section 14 of the Limitation Act, 1963 can be invoked by the Petitioner to get over the outer limit or restriction in sub section (1) of section 128 of the Customs Act, 1962. In fact, all the judgments that have been referred by the Hon'ble Supreme Court take the view that there was no power to condone the delay after expiry of th .....

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of Commissioner of Central Excise and Customs vs. Hongo India (p.) Ltd. Reported in (2009) 5 SCC 791 and second in the case of Union of India vs. Popular Construction Company reported in (2001)8 SCC 470. None of these decisions have been held to be laying down any proposition or principle of law, which has been pressed into service by Mr. Dhond before us. In fact, there is nothing in these Judgments which would enable us to hold that the Petitioner can invoke section 14(2) of the Limitation Act, .....

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, it cannot stop. It overruled the earlier Judgment in the case of P.K. KuttyAnuja Raja and Anr. Vs. State of Kerala and Anr. reported in AIR 1996 SC 2212 only because no argument was advanced as regards the applicability of doctrine of merger. The Hon'ble Supreme Court entertained the SLP and granted leave to Appeal as also stay. The time spent in prosecuting the proceedings before the Hon'ble Supreme Court and which is bonafide was permitted to be excluded. Pertinently, the test laid d .....

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