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M/s Shiv Sahil Construction Pvt. Ltd. Versus Union of India And Others

2015 (10) TMI 2415 - JHARKHAND HIGH COURT

Condonation of Delay under Section 14 of Limitation Act, 1963 Appellant claims to exclude time consumed in disposal of writ petition before Court in computation of delay Appellant contends that matter has not been properly appreciated by Commissioner (Appeals) and delay may be condoned which is approximately of 16 months and matter may be remanded back Revenue contends that no error committed by Commissioner (Appeals) - Delay was not condonable under section 85(3A) of Finance Act, 1994 A .....

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ble delay Section 14 not applicable as writ petition which was preferred after limitation period was over for preferring appeal U/s 85(3A) and is applicable only when the proceeding is bonafide in court without jurisdiction Appeal dismissed Decided in favour of Revenue. - W. P. (T) No. 201 of 2015 - Dated:- 25-8-2015 - D. N. Patel And Ratnaker Bhengra, JJ. For the Petitioner : M/s Sarvesh Kumar For the Respondent : M/s Deepak Roshan JUDGMENT Per D. N. Patel, J. 1. Instant writ petition has .....

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e order in original dated 31st December,2012 passed by the Additional Commissioner of Central Excise, Ranchi which was dismissed on 25th March, 2014. Previously another party had preferred a writ petition in which intervention application was preferred by this petitioner in Writ Petition (T) No. 1263 of 2013 along with other writ petitioners. 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 .....

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ed upon the decision rendered by Hon'ble Supreme Court in the case of Coal India Limited Vs. Ujjal Transport Agency reported in [2011] 1 SCC 117. Counsel for the petitioner has also relied upon the decision of Hon'ble Gujrat High Court in the case of Adani Enterprises Ltd. Vs. Union of India reported in 2012 (286) E.L.T. 676 (Guj.). On the basis of these decisions it is submitted that Section 14(2) of the Limitation Act, 1963 is applicable for condonation of delay by the Commissioner (Ap .....

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7 to 114/ RAN/ 2014 as delay was not condonable under section 85(3A) of the Finance Act, 1994. It has further been submitted by counsel appearing on behalf of Union of India that it has specifically been mentioned in the order in original passed by Additional Commissioner Central Excise, Ranchi dated 31st December, 2012 that demand of service tax has been affirmed against this petitioner as well as interest under section 75 of the Finance Act, 1994 has also been affirmed. There was violation of .....

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upreme Court reported in [2008] 3 SCC 70 Singh Enterprises Versus Commissioner of Central Excise Jamshedpur and others. Counsel for the respondents has also relied upon decisions rendered by Hon'ble Bombay High Court in Writ Petition No. 1830 of 2013 with writ petition (Civil) no. 3419 of 2014 decided on 24th December, 2014. It is further submitted by learned counsel for the respondent-Union of India that though order in original was passed on 31st December, 2012 which clearly affirms the de .....

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nion of India 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 Court which is always at the peril and risk of the petitioner, specially when delay is not condonable. This petitioner is not exception to "chance taking petitioner." This aspects of the matter have been taken care of by deciding the matt .....

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is sixty days. Delay can be condoned by Commissioner (Appeals) if there are reasonable reasons. But, Commissioner (Appeals) have no power, jurisdiction and authority to condone the delay beyond thirty days. In the facts of the present case, as stated by the counsel for the petitioner total delay is approximately sixteen months. The appeal was preferred after sixteen months from the date of which the order in original was passed. For ready reference Section 85 of the Finance Act, 1994 reads as un .....

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decision or order of [such adjudicating authority], relating to service tax, interest or penalty under this Chapter [made before the date on which the Finance Bill, 2012 received the assent of the President]: 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 three months, allow it to be presented within a further period of three months. [(3A) An appeal .....

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a further period of one month]. 4) The [Commissioner] of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty: Provided that an order enhancing the service tax, interest of penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subj .....

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oning the delay because it was beyond the period of condonable delay. (ii) It has been held by Hon'ble Supreme Court in the case of Singh Enterprises Versus Commissioner of Central Excise Jamshedpur and others reported in 2008 (3) SCC 70 in Paragraph no. 3 to 10 which reads as under: "3. The Division Bench noted that since the Commissioner had not power of condonation beyond the statutorily prescribed period, therefore, the writ petition was without merit. Before the high Court reliance .....

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that the power in this regard is untramelled by any statutory provision. 5. Learned counsel for the respondents on the other hand supported the orders of the Commissioner and the High Court. 6. At this juncture, it is relevant to take note of Section 35 of the Act which reads as follows: "35 Appeals to Commissioner (Appeals)-(1) any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to .....

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e in the prescribed form and shall be verified in the prescribed manner." 7. It is to be noted that the periods "sixty days" and "thirty days" have been substituted for "within three months" and "three months" by Act 14 of 2001, with effect from 11.5.2001. 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 sta .....

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nted 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 not power to allow the app .....

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days' period. 9. Learned counsel for the appellant has emphasized on certain decisions, more particularly, ITC case to contend that the high court and this Court is appropriate cases condoned the delay on sufficient cause being shown. 10. Sufficient cause is an expression which is found in various statutes. It is essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the inst .....

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son. ITC case was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no or .....

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ng to the order in original dated 31st December, 2012 passed by Additional Commissioner, Central Excise the demand notice issued upon this petitioner was affirmed, without any ambiguity. Order for interest was also passed and order for penalty was also imposed Under Section 77 of the Finance Act, 1994. Thus appeal should have been preferred by this petitioner as provided in the Finance Act, 1994. (v) There is tendency of those persons who are liable to make payment of the tax+interest+ penalty t .....

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be condoned beyond the period of thirty days the appeal may not be dismissed for want of condonation of delay. The petitioner is lethargic,but, certainly not an ignorant person and is knowing all fine niceties of law. Vigilant petitioner should have filed their appeals within the limitation period or at least within condonable delay period. (vi) Section 14 of the Limitation Act, 1963 reads as under : "14 . Exclusion of time of proceeding bona fide in court without jurisdiction . - (1) In c .....

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plication, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of .....

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Limitation Act cannot be extended to this petitioner. (vii) There is one more reason not to give benefit of Section 14 of the Limitation Act, 1963 to this petitioner as because Section 14 of the Limitation Act,1963 is applicable only when the proceeding is bonafide in the court without jurisdiction. The provision of Section 14 has been enacted only for the reason when there is total lack of jurisdiction the benefit can be given to the party who is preferring appeal at the slightly belated stage. .....

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arly Appeals under section 128 of the Customs Act, 1962. The third assumption on which we proceed is that sub-section (2) of Section 14 of the Limitation Act, 1963 applies to Appeals as well. We are not impressed by Mr. Dhond's placing reliance on the judgment of the Hon'ble Supreme Court in the case of Ketan Parekh vs. Special Director, Directorate of Enforcement and Anr. Reported in (2011) 15 SCC 30 . We have perused this judgment very carefully and minutely. 33) We are unable to agree .....

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a judgment delivered by it in the case of Singh Enterprises vs. commissioner of Central Excise reported in (2008) 3 SCC 70. In para 22, the Hon'ble Supreme Court referred to a three Judge Bench decision in the case of Consolidated Engineering Enterprises vs. Irrigation Department reported in (2008)7 SCC 169. In para 23 it specifically referred to two Judgments delivered by it, first in the case of Commissioner of Central Excise and Customs vs. Hongo India (p.) Ltd. Reported in (2009) 5 SCC .....

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2. Therefore, the observations in para 30 of the Judgment in the case of Ketan Parekh (Supra) cannot be seen in isolation or de hors the previous previous observations and conclusions therein. 44) Thus, the Hon'ble Supreme Court held in the case of Mohinder Singh (Supra) that once limitation starts running, till its running is stopped by an order of the competent Civil Court or competent Authority, it cannot stop. It overruled the earlier-Judgment in the case of P.K. Kutty Anuja Raja and Anr .....

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pendency can be relied upon the claim the benefit. A Writ Petitioner's pendency will not stand on the same footing always. If the time has not stopped running, then, none of the principles relied upon by the Petitioner will assist it. As we have noted above, in this case, Writ Petition was pending in this Court, but neither it was entertained nor any interim relief was granted, leave alone admitting it. If the Petitioner decides not to approach the appropriate, correct or right Forum, but tr .....

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