TMI Blog2017 (11) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... to have considered the issue whether the petitioners can be given benefit of the principles analogous to Sub-Section (2) of Section 14. Therefore, in the facts of the case, the matter will have to be remitted to the Appellate Tribunal for reconsideration of the prayer made by the petitioners for exclusion of time under (2) of Section 14. However, the number of factual aspects will have to be gone into - petition allowed by way of remand. - Writ Petition No. 988 of 2009 - - - Dated:- 5-10-2017 - A.S. OKA A.K. MENON, JJ. Mr. Prakash Shah a/w Mr. Jas Sanghvi i/by PDS Legal for the Petitioners. Mr. Pradeep S. Jetly for the Respondents. ORAL JUDGMENT (Per A.S. Oka, J.) 1. Called out for final hearing. By this Petition under Article 226 of the Constitution of India, the petitioners Assessees have taken an exception to the order passed dated 6th March, 2009 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench (Appellate Tribunal) at Mumbai. The petitioners made an application by taking recourse to the provisions of Sub-Section (2) of Section 35C of the Central Excise Act, 1944 (for short the said Act ). An application was made for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 or 14 of the Limitation Act are applicable. He also invited our attention to another decision of the Division Bench of this Court in the case of Principal Commissioner of Central Excise and Custom, Daman Vs. Omnitex Industries (I) Ltd. 2016(334) E.L.T. 639 (Bom.) . He submitted that in the case of M.P. Steel Corporation, the Apex Court was dealing with provisions regarding Appeal under the Customs Act which provide for a power to condone the delay. Even in the case of Principal Commissioner of Central Excise and Custom, Daman, the Division Bench was dealing with a case whether there was a power to condone the delay. In the present case, the intention of the legislature becomes very clear as the legislature brought down the period of limitation from four years to six months and did not provide for condonation of delay or extension of time for making an application for rectification. He submitted that the view expressed in the case of Flemingo Pvt. Ltd. remains unaffected by the decision of the Apex Court in the case of M.P. Steel Corporation (Supra) and therefore, in the present case, Section 14 cannot be invoked. 4. We have given careful consideration to the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunals such as Collector (Appeals) under Section 128 of the Customs Act. An argument which was canvassed before the Apex Court was that Section 128 as amended is a complete code in itself and it provides for condoning the delay of a maximum period of 60 days. The Apex Court dealt with the said argument in support of the proposition that applicability of Section 14 is excluded. In paragraph 35, Apex Court held thus : 35. Merely because Parson Tools also dealt with a provision in a tax statute does not make the ratio of the said decision apply to a completely differently worded tax statute with a much shorter period of limitation Section 128 of the Customs Act. Also, the principle of Section 14 would apply not merely in condoning delay within the outer period prescribed for condonation but would apply de hors such period for the reason pointed out in Consolidated Engineering above, being the difference between exclusion of a certain period altogether under Section 14 principles and condoning delay. As has been pointed out in the said judgment, when a certain period is excluded by applying the principles contained in Section 14, there is no delay to be attributed to the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e condoned only for a maximum period of 60 days and therefore, by invoking Section 14 of the Limitation Act, the said period of 60 days cannot be further extended. 6 As observed earlier, in the case of M.P. Steel, the Apex Court has made a distinction between the power to condone the delay and principles incorporated in Section 14 of the Limitation Act. Section 14 of the Limitation Act provides for exclusion of time and Section 5 of the Limitation Act provides for extension of time by condoning the delay. Hence, the decision in the case of Flemingo P. Ltd cannot be read as binding precedent in the light of the decision of the Apex Court in the case of M.P. Steel. 7. Now, we turn to the decision in the case of Principal Commissioner, Daman Vs. Omnitex. In paragraph 6, the argument based on the decision in the case of M.P. Steel Corporation was made. Paragraphs 6 to 8 of the said decision read thus : 6. While considering this question, we may profitably make reference to the decision of the Supreme Court in M.P. Steel Corporation v. Commissioner of Central Excise (2015 (319) E.L.T. 373 (S.C.). In that case, one of the questions was whether the Limitation Act, 1963 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 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 question of any application being necessary to condone the delay and the Appeal is in time. It is only if this remaining period exceeds 180 days that the Appellant will be required to file a application seeking condonation of delay and setting out the reasons or cause which in the Appellant's o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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