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The Principal Commissioner of Central Excise & Customs, Daman Commissionerate Versus Omnitex Industriex (India) Limited

2016 (5) TMI 382 - BOMBAY HIGH COURT

Condonation of delay - 2192 days - Delay in filing appeal happened because first the appellant had filed the appeal before the Gujarat High Court who was not having the territorial jurisdiction to entertain an appeal - Appeal before the Gujarat High Court was in fact filed in time - Held that:- there is no doubt that the Appellants were pursuing their remedy in a “Court”. The only question was one of lack of territorial jurisdiction. There is also no dispute that the Appeal before the Gujarat Hi .....

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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 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 .....

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Patel, JJ. For the Appellants : Mr. Pradeep S. Jetly For the Respondents : Mr. Prakash Shah, i/b PDS Legal JUDGMENT 1. This is one of a several Notices of Motion seeking that a quite substantial delay in the filing of these Appeals be condoned. As the facts in all these cases are broadly similar, we have dealt with the present Notice of Motion as the main case for this judgment; the others will follow suit. 2. The present Appeal arises from an order dated 2nd January 2009 passed by the Customs, .....

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bsequent 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 28 .....

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t of competent jurisdiction. It is pursuant to this order that the present Appeal was lodged in this Court on 29th July 2015. The Appellant then filed the present Notice of Motion seeking that a delay computed at 2192 days be condoned. 4. We have heard Mr. Jetly for the Appellants and Mr. Shah for the Respondents. Mr. Shah has, with his usual fairness, placed before us a compilation or compendium of several authorities on the subject. Before we advert to this, it is necessary to note that Sectio .....

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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 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 .....

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anagement Act, 1999 and its corresponding Rules as also the Central Excise Act, 1944, held that in an appropriate case Section 14 can be invoked to exclude the time an Appellant has spent prosecuting diligently his remedy before an incorrect forum. This is a consistent view of various courts. Badlu & Anr. v Shiv Charan & Ors, (1980) 4 SCC 401; Rajkumar Shivhare v Union of India, 2011 (273) E.L.T. 75 (Bom); Flemingo (Duty Free Shop) P. Ltd. v Commissioner of Customs (Appeals) Mumbai-I, 20 .....

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y to Courts and not to Tribunals, for the appeal in question in that case was before the tribunal. The Supreme Court noted the decision of the Supreme Court in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department (2008) 7 SCC 169 and in particular the five 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 subseq .....

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er appellate forum ought to be excluded. The Supreme Court also said that Section 14 must be liberally construed to advance the cause of justice. In paragraph 41 of its decision in M.P. Steel Corporation, the Supreme Court said that the plain language of Section 14, construed in light of its statutory purpose, lends itself to just such a liberal interpretation. The statutory object is to ensure that, subject to conditions being met, a plaintiff or applicant or appellant is put in the same positi .....

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