TaxTMI 
TaxTMI 
2017 (12) TMI 1142
X X X X Extracts X X X X
X X X X Extracts X X X X
....gal Counsel regarding future course of action to be taken in the matter viz. whether to file appeal before Hon'ble Supreme Court or not. The applicant applying certifying copy of the order on 21.4.2017, thereafter they decided to file appeal before Tribunal. The applicant claim that provisions of Section 14 of the Limitation Act, would apply to the facts of the present case and hence the period during which the writ/appeal pending before Hon'ble Bombay High Court should be excluded for calculating the period of limitation for filing the appeal of the cross-objection. In view of the above facts Ld. Counsel argued that the delay in filing the appeal should be condoned. In support of his assertion Ld. Counsel relied on the following decisions: (i) Collector, Land Acquisition Anantnag And Another Vs. MST. Katiji and Others - 1987 (28) E.L.T. 185 (S.C.) (ii) Union of India Vs. West Coast Paper Mills Ltd. - 2004 (166) E.L.T. 290 (S.C.) (iii) J.M. Bhansali And Ors The State of Madras And. Anr. - AIR 1968 Mad 373. (1968) 1 MLJ 442. 1968 21 STC 411 (iv) Ashok Kumar Tiwari Vs. Commissioner of C.Ex. Allabahad - 2015 (37) STR 749 (Tri.-Del.) (v) Sonia Overseas Pvt. Ltd. Vs. Union of India....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was 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 step-motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the result of the writ petitions was known. But that, in the circumstances, is explainable. Apparently, they were waiting for copies of the orders of the High Court in the writ petitions. The long delay we are inclined to think, in filing the appeals was more due to the time taken by the pendency of the writ petitions in this Court". 2.3. He also relied on the decision of Hon'ble High Court of Gujarat in the case of Jay Prabha Textile Printery (supra) wherein it was held that- 6. The applicant, thereafter, filed present Civil Application and Tax Appeal. The petition was disposed of on 1-10-2007 and Civil Application and Tax Appeal, were filed on or about 2-11-2007. Since the applicant was pursuing the legal remedy by way of Special Civil Application and considering the provisions contained in Section 14 of the Limitation Act, we are of the view that the applicant is prevented by sufficient cause for filing Tax Appeal before this Court. We, therefore, condone the delay of 265 days and allow this Civil Application. 3. Learned AR vehemently opposed the said COD application. He contended that - (i) The appellant has given an undertaking that they have previously not filed any appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Tax demand. Further judgments of Hon'ble High Courts at Allahabad and Delhi in the case of :- (i) Ganesh Yadav Vs. UOI [2015(320) ELT 711(All)] and (ii) Anjani Technoplast Vs. CC [2015(326) ELT 472(Del.)] had already decided the issue of deposit of 7.5% / 10% duty under Sec 35 of the Central Excise Act, and they had already been reported. Subsequently, the Order of Hon'ble Bombay High Court in the case of Nimbus Communication Ltd. Vs. CST Mumbai-IV [2015 (44) STR 578 (BOM)] was also decided on 25.07.2016 (within 2 months of filing the appeal by the appellants) and reported. Despite, such clear orders, the appellants chose to take the chance and pursue their case with the Hon'ble High Court instead of coming to the correct forum which is this Hon'ble Tribunal. This correctly shows that the petition in the Hon'ble High Court was not "prosecuted in good faith". 3.2. Ld. AR argued that a duly diligent appellant, in any case, would take the liberty of filing simultaneous appeal in this Tribunal like in the case of Kim Steel Strips Pvt. Ltd. 3.3. LD. AR relied on various Judicial pronouncement by Hon'ble Supreme Court on the applicability of Limitation Act on Special Acts like ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erred an appeal before the Hon'ble High court instead of the Tribunal. 3.4. Ld. AR relied on following Judicial pronouncements by various High courts : (i) He argued that Hon'ble Bombay High Court also examined the same issue specifically with respect to application of Sec 5 and Sec 14 of the Limitation Act in the case of Flemingo (DFS0 P. ltd Vs Commr of Customs (Appeals), Mumbai I. Specific reference was also brought about the findings of The Hon'ble Court, while examining the applicability of section 14(2) of Limitation Act. He argued that the Hon'ble court was scathing in its observations when it observed that "If the petitioner decides not to approach the appropriate, correct or right forum, but tries to bypass it by filing a writ petition and allows the time to run, then, it cannot request this court in its discretionary and equitable jurisdiction to set right a wrong, for which it is itself responsible" Further, it was submitted that findings of Para 46 is directly relevant and applicable in the instant case, wherein Hon'ble Court refused to exercise its power under wirt jurisdiction. (ii) He argued that the issue has also been examined by the Hon'ble High Court of Jharkh....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... cited, the provision of Limitation Act will not be applicable in the instant case as the hurdle of "sufficient cause" has not been crossed. 3.6. He argued that the application of condonation of delay may accordingly be dismissed. Learned AR placed reliance on the following judgments: (i) Ketan V. Parekh Vs. Special Director, Directorate of Enforcement - 2012 (276) E.L.T. 3 (S.C.) (ii) M/s. Patel Brothers Vs. State of Assam And Ors - 2017-TIOL-04-SC-VAT (iii) M/s. Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur - 2007-TIOL-231-SC-CX (iv) Vikas Shankar Joshi Vs. Addl Commissioner of Central Excise, Customs and Service Tax. - 2017-TIOL-1195-HC-MUM-CX (v) Flemingo (Duty Free Shop) P. Ltd. Vs. Commr. of Cus. (Appeals), Mumbai-I - 2015 (315) E.L.T. 321 (Bom.) (vi) M/s. Shiv Sahil Construction Pvt. Ltd. Vs. Union of India - 2015-TIOL-2479-HC-JHARKHAND-ST He further relied on the Hon'ble Supreme Court decisions in the case Ketan Parekh (supra) wherein it was held that- 18. The question whether Section 14 of the Limitation Act can be relied upon for excluding the time spent in prosecuting remedy before a wrong forum was considered by a two Judge Bench in State of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s Communications Limited Vs. Commissioner of S.T. Mumbai-IV - 2016 (44) STR 578 (Bom.) to assert that the reason for approaching the Hon'ble High Court of Mumbai for waiver of pre-deposit were not bonafide and genuine. 4. We have gone through the rival submissions. We find that the provisions pertaining to time limit for filing of appeal and for condonation of delay are contained in Section 35B (3), (4) & (5) which is reproduced below: "(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Central Excise, or, as the case may be, the other party preferring the appeal. (4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within....
X X X X Extracts X X X X
X X X X Extracts X X X X
....filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Explanation. -In this section "High Court" means- (a) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and (b) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain." The section prescribes a normal period of limitation and an upper limit for condonation, and grounds for condonation, is also prescribed. It is seen that the said Section does not give unlimited powers to the Hon'ble High Court to condone the delay. In terms of proviso to Section 35 of FEMA, 1999, Hon Hon'ble High Court can condone the delay of upto 60 days. In these circumstances after examining Section 5 and 14 of the Limitation Act, Hon'ble High Court came to the conclusion that period cannot be extended in terms of the said Sections of Limitation Act. 4.1.2. Ld. AR has relied on the decision of Hon'....
X X X X Extracts X X X X
X X X X Extracts X X X X
....R has also relied on the decision of Hon'ble Apex Court in the case of M/s. Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur - 2007-TIOL-231-SC-CX. In the said decision Hon'ble Apex Court was examining the condonation of delay in filing appeal before Commissioner (Appeals) under Central Excise Act. Section 35 of Central Excise Act reads as follows: "35. APPEALS TO COMMISSIONER (APPEALS). (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner." It is seen that in this case as well Hon'bl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Appeal within the period of 60 days. We do not find in the present case that the Appeal was presented within 60 days. It was not even presented thereafter within 30 days. The Petitioner/Appellant waited till 12th December, 2011 to present the Appeal. If the Petitioner waited for the outcome of a Writ Petition in this Court and in the meanwhile allowed the time to run, then, it has to blame itself. It is seen that in the said case Hon'ble Bombay High Court was dealing with power of Commissioner (Appeals) to condone delay under Section 128 of the Customs Act which reads as under: ".Section 128 in the Customs Act, 1962 128 Appeals to Commissioner (Appeals)]. - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Appeals)]. - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 4.2.3. In case of Foreign Exchange Management Act, 1999 Section 35 prescribed the time period for filing appeal to High Court the Section reads as follows:....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s to be excluded. While rejecting the argument, the three-Judge Bench observed: '.... what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express 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.' (emphasis supplied) 13. In Union of India v. Popular Construction Company (supra), this Court considered the question whether Section 5 of the Limitation Act can be invoked for condonation of delay in filing an application under Section 34 of the Arbitra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act.' 14. In Singh Enterprises v. CCE (supra), the Court interpreted Section 35 of the Central Excise Act, 1944 which is pari materia to Section 35 of the Act and observed: 'The Commissioner of Central Excise (Appeals) as also the tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erred to the judgments in Union of India v. Popular Construction Co. (supra), Singh Enterprises v. CCE (supra) and observed- 'As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient 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.' 17. In Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission (supra), a two-Judge Bench interpreted Section 125 of the Electricity Act, 2003, which is substantially similar to Section....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ocal law.' 17.1. The Court then referred to some of the precedents and held: 'In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked 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 the 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 and proviso to Section 125 will become nugatory.' It is seen that Hon'ble Apex Court has interpreted Section 29(2) of the Limitation Act, by observing that wherever the law prescribed a complete code prescribing time limit as well as power of condonation like an upper limit for condonation of delay or grounds of condonation, the law of limitation cannot be invoked to by-pass the same. 5 Thus in the instant case laws of limitation cannot be invoked as we are dealing with a complete code prescribed under Central Excise Act....
X X X X Extracts X X X X
X X X X Extracts X X X X
....igh Court has described their petition as 'misconceived' while dismissing it. 5.1. Ld. AR argued that the applicant did not approach Hon'ble High Court with bonafide reasons. He argued that the intention was to by-pass the Tribunal. He has argued that the applicant had approached the Hon'ble High Court for waiver of pre-deposit under Section 35F of the Central Excise Act. He pointed out that the following decision of various High Courts on same issue were available at the material time. (i) Ganesh Yadav Vs. Union of India - 2015 (320) ELT 711 (All.) (ii) Anjani Technoplast Ltd. Vs. Commissioner of Customs - 2015 (326) ELT 472 (Del.) (iii) Nimbus communications Ltd. Vs. CST, Mumbai-IV - 2016 (44) STR 578 (Bom.) He argued that it is apparent that the Hon'ble Courts at the material time had a clear view that under Section 35F of the Act, deposit is mandatory and cannot be waived. He argued that in these circumstances the applicants approach to Hon'ble High Court was not bona fide, but only intended to delay the matter. 5.2 In the above circumstances when various High Courts had taken a clear stand on the issue the appellants approach to Hon'ble High Court on the same issue of pr....