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TMI Blog2017 (3) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... on, they enquired from the office of the Commissioner of Customs ICD TKD and they came to know that they were required to file the appeal before Commissioner (A) New Custom House, New Delhi. Therefore, they proceeded with the matter and send letter dated 16.07.2013 to the Commisioner (A), New Customs House, New Delhi stating the fact that initially, they filed the appeal before Commissioner (C) ICD TKD which is not the correct office. Therefore, either the appeal be called from the said or they may be allowed to file the fresh appeal but the Ld. Commissioner (A) observed that the date of filing the appeal is 18.07.2013 and hold that their appeal was filed beyond the period of limitation. Therefore, the appeal was dismissed. It is the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant is that they have filed the appeal before the wrong forum as they are required to file the appeal before Commissioner (A), New Customs House New Delhi whereas they have filed the appeal before the Commissioner (A), ICD, TKD well within time. These facts are not in dispute. 7. Now the issue arises, whether filing the appeal before Commissioner (A) ICD TKD, within time shall be fetal for the appellant or not. 8. We have seen that all though appeal was required to be filed before Commissioner of Customs (A), New Customs House, but appellant has filed the appeal before the Commissioner of Customs (A) ICD TKD and same has been received in the office of Commissioner (C) ICD TKD within time. As appeal has been received in the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to entertain it. (2) In computing the period of limitation for any application, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Pvt. Ltd. v. UOI - 2013 (293) E.L.T. 326 (Raj.) (DB) relied upon by learned Counsel for the respondents are relating to applicability of Section 5 of 1963 Act. Section 5 of the 1963 Act falls under Part II relating to „Extension of prescribed period in certain cases‟ for limitation of suits, appeals and application. What proviso to Section 128 of 1962 Act contemplates is regarding extension of limitation in terms of Section 5 and does not relate to exclusion of time contemplated under Section 14 of 1963 Act. In our opinion, „Exclusion of time‟ for computation of period of limitation under Section 14 of 1963 Act is one thing and „Extension of prescribed period in certain cases under Section 5 of 1963 Act is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the circumstances where appeal has not been filed within time. Therefore, the delay cannot be condoned by invoking section 5 of the Limitation Act 1963. We are bound by the above judicial pronouncement but the facts of this case are somehow different. In this case, the appeal was filed within time but before the wrong Commissionerate. In that situation the provision of section 14 of the limitation act are applicable to the facts of this case. Therefore, the period between 15.03.2012 to 18.07.2013 is required to be excluded. In the said situation the appeal was filed by the appellant before the Ld. Commissioner (A) is within time. In that scenario, we set aside the impugned order and hold the appeal was filed by the appellant within time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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