TMI Blog2016 (5) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, from the time of filing of the Appeal in the Gujarat High Court till its disposal as above by that Court must, in our view, be fairly excluded for the purposes of limitation. If that is not done, great injustice and unfairness will result. The direction of that High Court, with respect, is that the papers in each of these Appeals be returned to the respective Appellants / their Advocates for presentation to the Competent Appellate Court, which is this Court. Therefore, for the purpose of computing the delay to be condoned, if any, we must take first the two dates that lie at the extremities, viz., the date of receipt of the order appealed against and the date of filing of the Appeal in the present Court. From this period, the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. We only note that the CESTAT order-in-appeal was passed in a proceeding that emanated from an Order-in-Original dated 10th January 2008 passed by the Joint Commissioner, Central Excise and Customs, Daman and a subsequent order dated 30th July 2008 passed by the Commissioner (Appeals), Central Excise Customs, Daman. 3. Copies of the two CESTAT appellate orders were received by the present Appellants on 28th January 2009 and 19th June 2009 respectively. The present Appellants preferred an Appeal under Section 35-G of the Central Excise Act, 1944 before the Gujarat High Court. That Appeal was lodged within 180 days, the period prescribed under Section 35-G(2)(a) of the Central Excise Act, 1944. On 28th April 2011, the Gujarat High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the Plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or 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 similar cause, is unable to entertain it. 5. This Section and its application to various statutes, including in particular taxing statutes, have been interpreted in several authorities. A Division Bench of this Court in Union of India v Epcos India Private Limited 2013 (290) E.L.T. 364 (Bom) held in the context of the Central Excise Act, 1944 that the period spent in prosecuting the Appeal bona fide before the CESTAT, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve conditions that are set out in paragraph 21 of that decision for the correct invocation and application of Section 14 of the Limitation Act. These five conditions are by now well settled. Both the prior and subsequent proceedings must be civil proceedings prosecuted by same party; the prior proceeding should have been prosecuted with due diligence and in good faith; the failure of the prior proceeding must have been due to a jurisdictional defect or similar cause; both proceedings must relate to the same matter in issue; and both proceedings must be in a Court. In paragraph 7 of its decision in M.P. Steel Corporation, the Supreme Court in terms held that the period spent in pursuing a remedy before another appellate forum ought to be exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and unfairness will result. The direction of that High Court, with respect, is that the papers in each of these Appeals be returned to the respective Appellants / their Advocates for presentation to the Competent Appellate Court, which is this Court. 8. For the purposes, therefore, of computing the delay to be condoned, if any, we must take first the two dates that lie at the extremities, viz., the date of receipt of the order appealed against and the date of filing of the Appeal in the present Court. From this period, the entire period from the date of filing of the Appeal in the Gujarat High Court to the date of its disposal by that High Court is to be excluded. If the remaining period is found to be 180 days or less, then there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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