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2016 (6) TMI 1034 - MADRAS HIGH COURT

2016 (6) TMI 1034 - MADRAS HIGH COURT - TMI - Condonation of delay of 223 days in filing the appeal before the Commissioner of Service Tax (Appeals) - disallowance and demand under Rule 14 of the CENVAT Credit Rules, 2004, r/w. Section 73(1) of the Finance Act, 1994 - Held that:- Section 85 of the Finance Act, is similar to Section 128 of the Customs Act, 1962; Section 34(3) of the Arbitration and Conciliation Act, 1996; Section 125 of the Electricity Act, 2003; Section 35-G of the Central Excis .....

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n the aspect of the Court, exercising powers under Article 226 of the Constitution of India, to condone the delay, we are of the view that the decision of this Court in Indian Coffee Worker's Co-operative Society Ltd.,'s [2002 (1) TMI 1302 - MADRAS HIGH COURT], squarely applies to the case on hand - Condonation of delay denied - Decided against the assessee. - Writ Appeal No.589 of 2016, C.M.P.No.7766 of 2016 - Dated:- 13-6-2016 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. K. .....

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pellant suffered an Order in Original No.114 of 2010, dated 29.10.2010, passed by the Additional Commissioner of Service Tax, Service Tax II Commissionerate, Chennai, 2nd respondent herein, by which, he has disallowed CENVAT Credit of ₹ 13,51,316/- and ₹ 1,26,776/- and demanded the same from the appellant, vide Show Cause Notice No.122/09, dated 03.04.2009 and No.23/2009, dated 28.07.2009 respectively, under Rule 14 of the CENVAT Credit Rules, 2004, r/w. Section 73(1) of the Finance .....

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enalty, within 30 days from the date of receipt of the order, in terms of proviso to Section 78 of the Finance Act. 3. Being aggrieved by the same, the appellant filed an appeal under Section 85 of the Finance Act, to the Commissioner of Service Tax (Appeals)-I, Chennai, 1st respondent herein, with a delay of 223 days in filing the appeal. The reason for the delay is that the person, dealing with service tax matters, in their organisation, had left the service, leaving the relevant papers in dis .....

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(Appeals) is empowered to condone the delay of a further period of three months, if he is satisfied that the appellant was preferred by sufficient cause from presenting the appeal. As the delay was beyond the condonable period, provided under the statute, the 1st respondent herein, vide order in Appeal No.10/2014(M-ST), dated 01.12.2014, dismissed the appeal. 4. Being aggrieved by the abovesaid order, the appellant has filed W.P.No.5194 of 2016, for a Writ of Certiorarified Mandamus, to quash th .....

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v. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC), Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., reported in 2009 (236) ELT 417 (SC), Gopinath v. CESTAT, Chennai reported in 2013 (32) STR 172 (Mad.), Albert v. Commissioner of Service Tax, Chennai reported in 2015 (37) STR 187 (Mad.) and Saradha Travels v. Commissioner of Service Tax reported in 2015 (3) STR 433 (Mad.). 5. In the counter affidavit, the Assistant Commissioner of Central Excise has further contended th .....

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, v. Masood Ahmed Khan reported in 2011 (273) ELT 345 and Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others reported in 1987 (28) ELT 185 (SC) and Albert v. Commissioner of Service Tax, Chennai reported in 2015 (37) STR 187 (Mad.) and on the facts and circumstances of the case, by observing that there is no error or illegality in the order passed by the Commissioner (Appeals), dated 01.12.2014, writ Court, vide order, dated 22.02.2016, dismissed the writ petition. Being .....

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oner of Service Tax (Appeals)-I, Chennai, does not enjoy the power to condone the delay, beyond the statutory period, an aggrieved person has no other alternative remedy, except to approach this Court, under Article 226 of the Constitution of India and having regard to the grievances of the appellant, the Writ Court ought to have condoned the delay. He also submitted that when the appellant has raised an important question that the quasi-judicial authority ought to have recorded reasons for cond .....

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parties. 11. In Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others reported in 1987 (28) ELT 185 (SC), an appeal was preferred by the State of Jammu & Kashmir, arising out of a decision, enhancing compensation, in respect of acquisition of lands for public purpose to an extent of nearly ₹ 14 Lakhs, by making an upward revision of the order of 800% (From ₹ 1000/- per kanal to ₹ 8000/- per kanal). Violation of principles of natural justice has also be .....

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elastic to enable the courts to apply the law in a meaning- ful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- "1. Ordinaril .....

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#39;s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand .....

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as altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be s .....

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icient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on mertis in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is rem .....

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ling an appeal. 12. In Bhag Singh v. Major Daljit Singh reported in 1987 (32) E.L.T. 258 (SC), while considering the scope of Section 5 of the Limitation Act and on the facts and circumstances of the case, the Hon'ble Supreme Court, at Paragraph 2, held as follows: It is well settled that while considering an application for condonation of delay under Section 5 of the Limitation Act, 1963, the Court should not take too strict and pedantic stand which will cause injustice but to consider it f .....

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, it is felt that for the ends of justice and fair play, the application under Section 5 of the Limitation Act should be allowed as sufficient cause has been made out for the condonation of delay in filing the application for bringing on record the legal representative of the deceased. Judgement in Bhag Singh's case (cited supra), is not applicable to the facts on hand, as it has not dealt with the special provision, Section 85 of the Finance Act. The above reported judgment deals with the a .....

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This Court, by observing that when on the same set of facts similarly placed exporters were allowed drawback claims, merely because there was a delay on the part of the petitioner therein in not preferring the appeals, he cannot be deprived of its legitimate claims for drawback and accepting the reasons for the delay, set aside the impugned order therein, and directed the respondents therein to entertain the appeal and passed orders on merits, with regard to the drawback claims filed by the pet .....

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ile exercising jurisdiction under Article 226 of the Constitution of India. 14. In Jai Hind Bottling Company (P) Ltd., v. Commr. (Appeals) C.Ex., Allahabad reported in 2002 (146) ELT 273 (All.), there was a delay of 99 days in filing an appeal to the Commissioner of Appeals. As per Section 35 of the Central Excise Act, 1944, for filing an appeal, 60 days' time is provided and if the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the a .....

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dering the decisions in Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others reported in 1987 (28) ELT 185 (SC), Eureka Forbes Ltd., v. Union of India [1998 (98) ELT 591 (All.)] and ITC Ltd., v. Union of India [1998 (101) ELT 9 (SC)]. In Eureka Forbes Ltd.,'s case (cited supra). It is the view of the Allahabad High Court that Sections 5 and 29(2) of the Limitation Act, have been excluded expressly by the provision of the Central Excise Act and so saying, the Court held .....

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(I) CTC 406, the question considered by a Hon'ble Division Bench of this Court was, as to whether, the High Court, while exercising Article 226 of the Constitution of India, can direct the appellate authority to consider the appeal, on merits, when such appeal was filed after the expiry of 30 days, from the last date, on which, appeal should have been filed. The issue arose out of a decision of the Special Tribunal, which dismissed the petition, declining to condone the delay. While consider .....

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ns in Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P., [AIR 1976 SC 2161], K.Ganesh v. State of Tamil Nadu [ 1988 STC (VOL.68) 84], Kanaka Durga Agro Oil Products Ltd., v. Commercial Tax Officer, Benz Circle, Vijayawada and another [2000 STC (Vol.119) 387] and Union of India v. M/s.Popular Construction Co., [2001 (4) CTC 213], a Hon'ble Division Bench of this Court summarised the legal position as hereunder: (a) An appeal under Section 30(1) of the Tamil Nadu General Sales Tax Act, .....

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correctness of the order of the appellate authority, it has no power to direct the appellate authority to consider the appeal on merits as otherwise it would be nothing but Court extending the period of limitation. (d) Even if the High Court accepts the explanation given by the assessee for not filing the appeal within the period prescribed under the Act, it cannot direct the appellate authority to consider the matter on merits as the High Court exercising jurisdiction under Article 226 of Const .....

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r such purposes, provided that the application for renewal of a permit shall be made (a) in the case of stage carriage permit or public carrier's permit, not less than 120 days before the date of expiry; and (b) in any other case not less than 60 days before the date of its expiry. Sub-section (3) of that Section further provided that: " Notwithstanding anything contained in the first proviso to subsection(2), the Regional Transport Authority may entertain an application for the renewal .....

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could be said to expressly exclude the provisions of Section-5 of the Limitation Act which gives unlimited power to the Court or a Tribunal to excuse the delay irrespective of the number of days of delay? Considering this question, the Supreme Court held: " It is therefore, clear that sub-section (3) of Section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time-limit specified in the proviso to sub-section (2) .....

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3 makes Section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was sub-section (3). Does sub-section (3) expressly exclude further extension of time under Section 5? If it does, then Section 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Tra .....

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le only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days. " 11. It has to be noted that even though in the provisions of the Act (Section 58 of the Motor Vehicles Act of Uttar Pradesh), the wordings "condonable only if it is of not more than 15 days" are not there, the Supreme Court so held on the basis of the wordings employed in the provisions of the Act, which r .....

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Tribunal, Coimbatore. The Revisions were filed under Section 38 of the Tamil Nadu General Sales Tax Act. According to Sub-section-1 of Section-38, a petition can be preferred to the High Court within 90 days from the date of which copy of the order is served. By virtue of the 8th Amendment Act 1986 which came into effect on 15/12/1986, the High Court may within a further period of forty-five days, admit a petition preferred after the expiration of the said period of ninety days, if it is satisfi .....

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ection 5 of the Limitation Act. 13. The next ruling that can be usefully referred to is the one reported in Kanaka Durga Agro Oil Products Ltd., v. Commercial Tax Officer, Benz Circle, Vijayawada and another [2000 STC (Vol.119) 387]. That was a case arising under Andhra Pradesh General Sales Tax Act. In that case, the petitioner agreed for the proposed assessment and gave a letter of consent to that effect. However, long thereafter, the petitioner filed an appeal against the said assessment orde .....

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issed the appeal on the ground of delay. The Court ruled as under:- "If the special statute prescribed a particular period of limitation for preferring the appeal, the appeal has to be necessarily filed within that date. If there is a provision for condonation of delay and sufficient cause is shown, the appellate authority can condone the delay if it is satisfied with the reasons for the delay. The proviso to Section 19[1] as it originally stood empowered the appellate authority to admit an .....

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and ruled that when the statue positively prescribes 90 days as time limit for the purpose of filing an application under Arbitration Act, that provision is to condone the delay for a further period of 30 days only and Section 5 of the Limitation Act does not apply in view of express exclusion and scheme of the Act and delay beyond a period of 30 days after expiry of the original period of limitation cannot be condoned. It will be useful to quote in verbatim, the exact wordings employed by the S .....

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yond the extended period under the proviso, would render the phrase but not thereafter' wholly otiose. No principle of interpretation would justify such a result. " 16. In Kathiravan Pipes Pvt. Ltd.,v. CESTAT, Chennai, reported in 2007 (5) STR 9 (Mad.), the challenge was to the correctness of the order passed by the Tribunal, dated 14.08.2006, whereby, the petitioner was non-suited, by declining to condone the delay of 25 days in filling the appeal. Reason assigned for condonation of de .....

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s are conferred with the power to condone the delay. Likewise, the limitation prescribed is not for destruction of statutory right and is only to give finality without protracting the matter endlessly. 6. Here is the case where the petitioner sought for condoning the delay 25 days and a part of which has been explained by producing the medical certificate. Hence, this Court is of the view that the second respondent ought to have condoned the delay and allowed the petitioner to have their case de .....

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l Excise & Customs v. Marimuthu reported in 2007 (212) ELT 29 (Mad.), a learned single Judge, while testing the correctness of an order, made in I.A.No.187 of 1999 in an unnumbered appeal, declining to condone the delay of 131 days in filing the appeal, considered the scope of Section 5 of the Limitation Act and after considering the expression, sufficient cause , explained in the decision in State of Haryana v. Chandra Mani reported in 1996 (3) SCC 132, held that the first appellate Court h .....

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Hon'ble Supreme Court in Vidyacharan Shukla v. Khubchand Baghel reported in AIR 1964 SC 1099, Hukamdev Narain Yadav v. Lalit Narain Mishra reported in 1974 (2) SCC 133 and Union of India v. Popular Construction Co., reported in 2001 (8) SCC 470, a Hon'ble Division Bench of Punjab and Haryana High Court, set aside the order of rejection and directed the Commissioner (Appeals) to consider the case of the petitioners therein, by taking into account the fact, as to whether, the petitioners .....

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d in 2008 (228) E.L.T. 162 (SC), there was an ex-parte decree. Application was filed to set aside the same, which was dismissed for default. Another application was moved to condone the delay of 883 days, to set aside the order of dismissal for default. On revision, the Court dismissed the said application, on the ground that, "If the appellant was careful enough to verify about the stage of the proceedings at any point of time and had he been misled by the counsel then only it could have b .....

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the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 9. It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length .....

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unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the dela. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. 10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute betw .....

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a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Int .....

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presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigan .....

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altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss. 14. In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more s .....

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thin one month from this date. 15. The appeals are disposed of accordingly. Though in the above reported case, it is observed by the Hon'ble Apex Court that, the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice and the time limit fixed for approaching the court, in different situations in not because on the expiry of such time a bad cause would transform into a good cause. In N.Balakrishnan's case (cited supra), condonation o .....

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Hon'ble Apex Court considered a case, where the Commissioner dismissed the appeal on the grounds that it was time barred and beyond the period of 30 days from the expiry of period of 60 days, prescribed for filing the statutory appeal. The High Court dismissed the writ petition. Before the Supreme Court, arguments were advanced that even though the Commissioner has no power to condone the delay, yet in exercise of the powers, under Article 226 of the Constitution of India, the High Court ca .....

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the Indian 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 communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented 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 .....

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ain 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. 21. In Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., reported in 2009 (236) ELT 417 (SC), the Hon'ble Apex Court c .....

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d to Chapter VIA of the Act which provides appeals and revisions to various authorities. Though the Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to Appellate Tribunal. Also an additional period of 90 days in the case of revision by Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G a .....

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lay in presentation of the reference under Section 35H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, (2008) 3 SCC 70 concluded that "the High Court was justified in holding that there was no power for condonation of delay in filing reference application." 19) As pointed out earlier, the language used in Section 35, 35B, 35EE, 35G and 35H makes the position .....

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fficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and re .....

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he provisions of this section are expressly excluded in the case of reference to High Court. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that t .....

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ress reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act, but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Exc .....

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Chennai, reported in 2010 (251) ELT 510, there was a delay of 708 days in filing an appeal and the same was dismissed by the Income-Tax Appellate Tribunal. Before this Court, by way of Tax Case Appeal, the following substantial questions of law, were formulated, 1. Whether in the facts and circumstances of the case, the Tribunal has ascertained its discretion in refusing to condone the delay in filing appeal in a proper legal perspective? 2. Whether in the facts and circumstances of the case, t .....

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. Mst.Katiji and others [1987(28) ELT 185], State of Haryana v. Chandra Mani [AIR 1996 SC 1623], Vedabai @ Vaijayanatabai Baburao Patil v. Shantaram Baburao Patin and others [(2002) 253 ITR 799] and Bharat Auto Center v. Commissioner of Income-Tax and another [(2006) 282 ITR 366(Allabahad)] and by observing that a litigant does not stand to benefit by resorting to delay, but he runs a serious risk and Courts are not respected on account of its power to legalise injustice on technical grounds but .....

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be invoked by this Court, for allowing the aggrieved person to file an appeal, under Section 125 of the Electricity Act, 2003, after more than 120 days, from the date of communication of the decision of the order of the Appellate Tribunal for Electricity. In the reported case, the appellant challenged the order of the Central Regulatory Authority, before the Tribunal. Vide order, dated 17.05.2007, the Tribunal allowed the appeal. Being aggrieved, the appellant preferred an appeal before the Supr .....

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ion of delay beyond the period of 120 days. Decision in Mukri Gopalan v. Cheppilat Puthuapurayil Aboobacker [(1995) 5 SCC 5] was pressed into service. Besides, a contention was also made that, by virtue of the impugned order therein huge liability has been created against the appellant and if the appeal is not entertained, it will suffer irreparable injury. Learned counsel appearing for the 3rd respondent therein has submitted that in view of the plain language of the proviso to Section 125 of t .....

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Private Ltd.,'s case (cited supra). Section 125 of the Electricity Act, 2003, reads as follows: 125. Appeal to Supreme Court:- Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 OF 1908): Provided that the Supreme Court may, .....

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d, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 29. Savings.- (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (9 of 187 .....

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xtent to which, they are not expressly excluded by such special or local law. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of "easement" in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend. After consideri .....

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of Civil Procedure. Proviso to Section 125 empowers this Court to entertain the appeal within a further period not exceeding 60 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. In other words, an appeal under Section 125 can be filed within a maximum period of 120 days if this Court is satisfied that there was sufficient cause for not filing the same within 60 days from the date of communication of the decision or order .....

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ed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits etc. The use of the expression within a further period of not exceeding 60 days' in Proviso to Section 125 makes it clear that the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days. 26. The objec .....

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expert body and no court, except this Court, may entertain challenge to the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil courts (Section 145) qua an order made by an adjudicating officer is also a pointer in that direction. 27. It is thus evident that the Electricity Act is a special legislation within the meaning of Section 29(2) of the Limitation Act, which lays down that where any special or local law prescribes for any suit, appeal or application a period .....

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nvoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal a .....

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order of dismissal of an appeal, filed after one year and also the plea that the appellate authority has power to condone the delay upto three months, at Paragraph 4, ordered as follows: 4. In that view of the matter, we find no illegality in the order under challenge. Counsel for the petitioner, however, drew our attention to the judgment of this Court in the case of D.R. Industries Ltd. and Anr. v. Union of India and ors. reported in : 2008 (3) G.L.H. 662 : 2008 (229) E.L.T. 24 (Guj.) to cont .....

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asons, to obviate extreme hardship or injustice, entertain a challenge even beyond the period of limitation prescribed. In the present case, however, we are not inclined to adopt such a course for the simple reason that the amount of service tax and penalty demanded is not very large. Further, in any case it is a question of payment of tax from one Central Government Department to another Central Government Department. Looking to the facts and circumstances of the case, we are not inclined to ex .....

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uthorities have examined the issue, on merits. Seeking reversal of the orders, the petitioner therein placed reliance on decisions in D.R. Industries Ltd. and Anr. v. Union of India and ors. [2008 (3) G.L.H. 662 : 2008 (229) E.L.T. 24 (Guj.)] and Senior Superintendent of Post Office v. Union of India [2011 (24) STR 168 (Guj.)]. On the facts and circumstances of the case, the Gujarat High Court, at Paragraph 11, held as follows: In the instant case, as the petitioner has approached this Court urg .....

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High Court seeking redressal under writ jurisdiction for valid reasons, to obviate extraordinary hardship and injustice such challenge can be entertained even beyond the period of limitation. Here again, the Hon'ble Division Bench of Gujarat High Court has observed that when an aggrieved party knocks at the door of the High Court, seeking redressal, under writ jurisdiction for valid reasons, to obviate the extraordinary hardship and injustice, such challenge can be entertained, even beyond t .....

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ad.), after considering the decision in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (SC)], this Court, at Paragraphs 16 and 17, held as follows: 16. In the order passed in Order in Original No.96 of 2009 dated 16.12.2009, appeal was filed before the Commissioner of Central Excise (Appeals) on 26.12.2011, acknowledged on 29.12.2011 beyond the period of three months plus discretionary period of three months. Tribunal rightly referred to the decision in 20 .....

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al beyond the maximum period prescribed under the Act. Referring to Singh Enterprises case [2008 (221) E.L.T. 163 (S.C)], Tribunal has rightly dismissed the appeal. We do not find any infirmity in the order of the Tribunal and no substantial questions of law involved in this appeal and the appeal is dismissed. 27. In JCB India Ltd., v. Union of India reported in 2014 (301) ELT 209 (P & H), on the facts and circumstances of the case, a Hon'ble Division Bench of Punjab and Haryana High Cou .....

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cation for condonation of delay, dismissed the appeal, on the grounds that sufficient cause has not been shown. While considering the correctness of the order of the Tribunal, dismissing the appeal as time barred, a Hon'ble Division Bench of this Court, at Paragraph 8, held as follows: 8. It is a settled legal position that the law of limitation has not been enacted for the purpose of defeating the rights of the parties and if a person has not been diligent and acted in a mala fide and with .....

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is open to them to move the higher appellate forum. 29. In Ravi Pharmaceuticals Private Ltd., v. Union of India reported in 2014 (306) E.L.T. 474 (Guj.), following the decision in D.R. Industries Ltd. and Anr. v. Union of India and ors. [2008 (3) G.L.H. 662 : 2008 (229) E.L.T. 24 (Guj.)], a Hon'ble Division Bench of the Gujarat High Court remitted the matter to the adjudicating authority to consider the case of the petitioner therein, after providing him an opportunity. 30. In Rusapi Contai .....

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4) ELT 514, a Hon'ble Division Bench of this Court considered the issue, as to whether, the Tribunal was right in rejecting the appeal filed by the appellant for condoning the delay. Based on the orders of the Tribunal in Trichy Institute of Management Studies (P) Ltd., v. Commissioner [2011 (22) STR 533], the Bench held as follows: It is settled legal principle that the law of limitation has not been enacted with an intention to defeat the rights of the parties. If the appellant's guilt .....

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reported judgment shows that the revenue has not raised any question, as to whether, the appellate authority or tribunal, as the case may be, has jurisdiction to condone the delay, beyond the extended period of delay. 32. In M/s.Kwang Jin India Auto Systems v. Commissioner of Customs (Appeal) [W.P.No.23715 of 2014, dated 25.08.2015], the impugned order therein came to be passed by the Commissioner of Customs, who dismissed the appeal, as time barred. Accepting the contentions of the learned cou .....

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No doubt the Writ Court issued the abovesaid directions, but reading of the abovesaid order shows that there is no question and discussion, as to whether, the Court, in exercise of powers, under Article 226 of the Constitution of India, is empowered to issue such directions to the appellate authority to condone the delay in filing the appeal. 33. In Saradha Travels v. Commissioner of Service Tax reported in 2015 (3) STR 433 (Mad.), appeal was filed with a delay of one year and six months. The Tr .....

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lated period. 34. Albert v. Commissioner of Service Tax, Chennai reported in 2015 (37) STR 187 (Mad.), was a case of an ex-parte adjudication and an appeal was filed with delay. CESTAT, Madras, dismissed the appeal, as time barred. Substantial questions of law raised were, (1) Whether the Appellate Tribunal is right in upholding the order of the Commissioner (Appeals), dated 07.08.2012, dismissing the appeal as time barred? and (2) Whether the Appellate Tribunal ought to have entertained the app .....

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[2008 (221) E.L.T. 163 (SC)], JMJ Constructions v. Assistant Commissioner of Central Excise, Salem and others [(2012) 56 VST 256 (Mad.)], Earbis Engineering Co. Ltd., and another v. Deputy Commissioner of Sales Tax, Ballygunge Charge and another [(2012) 56 VST 258 (WBTT), Gopinath & Sharma v. CESTAT, Chennai [2013 (32) STR 172 (Mad.)] and Gopinath & Sharma v. CESTAT [2013 (32) STR J78(SC)], a Hon'ble Division Bench of this Court dismissed the Civil Miscellaneous Appeal. 35. Section .....

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direct such authority or any Central Excise Officer subordinate to him to apply to the Commissioner of Central Excise (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order. (2) Every order under sub-section (1) shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority. (3) Where in pursuance of an order under sub-section ( .....

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g appeals shall apply to such application. Explanation.- For the removal of doubts, it is hereby declared that any order passed by an adjudicating officer subordinate to the Commissioner of Central Excise immediately before the commencement of clause (C) of section 112 of the Finance (No. 2) Act, 2009, shall continue to be dealt with by the Commissioner of Central Excise as if this section had not been substituted.] 85.(1) Any person aggrieved by any decision or order passed by an adjudicating a .....

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dent. 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 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, relatin .....

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t and such orders may include an order enhancing the service tax, interest or penalty: Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person 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 pro .....

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Official Gazette, constitute such Committees as may be necessary for the purposes of this Chapter. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be. (2)The Committee of Chief Commissioners of Central Excise may, if it objects to any order passed by the Commissioner of Central Excise under section 73 or section 83A [xxxx], direct the Commissioner of Central Excise to appeal to t .....

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the Appellate Tribunal against the order. (2A) The Committee of Commissioners may, if he objects to any order passed by the Commissioner of Central Excise (Appeals) under section 85, direct any Central Excise Officer to appeal on his behalf to the Appellate Tribunal against the order: Provided that where the Committee of Commissioners differs in its opinion against the order of the Commissioner of Central Excise (Appeals), it shall state the point or points on which it differs and make a referen .....

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ter. (3) "Every appeal under sub-section (2) or sub-section (2A) shall be filed within four months from the date on which the order sought to be appealed against is received by the Committee of Chief Commissioners or, as the case may be, the Committee of Commissioners."; (4) The Commissioner of Central Excise or any Central Excise Officer subordinate to him] or the assessee, as the case may be, on receipt of of a notice that an appeal against the order of the Commissioner of Central Ex .....

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orandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (1) or sub-section (3)]" or sub-section (4) if it is satisfied that there was sufficient cause for not presenting it within that period. (6) An appeal to the Appellate Tribunal shall be in .....

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y levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees; c) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees: Provided that no fee shall be payable in the case of an appeal referred to in sub-section (2) or sub-section (2A) or a memorandum of .....

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ntral Excise, as the case may be under this sub-section. (7) Subject to the provisions of this Chapter, in hearing the appeal and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercise and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944). 36. It is now well settled by the Hon'ble Supreme Court in Singh Enterprises v. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC), .....

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