TMI Blog2017 (12) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In the instant case, laws of limitation cannot be invoked as we are dealing with a complete code prescribed under Central Excise Act, where not only the period of limitation is prescribed but also the grounds on which condonation can be granted are prescribed. However it is seen that, as against the provisions examined in para 4 above, there is no upper limit for period of condonation in the instant case. Thus there is no necessity to invoke the provisions of the Limitation Act, so long as the reasons of delay are covered by the provisions of law. Whether there was reasonable cause for delay? - Held that: - 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 pre-deposit was not with clean hands. Even after the decision of Hon’ble High Court was received the appellants delayed the filing of appeal for a long time. This shows the callous approach. Application for COD dismissed. - ST/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 612 (A.P.) (vii) Jay Prabha Textile Printery Vs. Commissioner of Central Excise - 2015 (321) E.L.T. 412 (Guj.) 2.1. Ld. Counsel argued that in the case of Collector Land Acquisition Anantnag And Another Vs. MST Hon'ble Apex Court has held that- 3. The legislature has conferred the power to? condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits . The expression sufficient cause employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves 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 justifiable 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. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits 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 remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. 2.2. He further relied on Para-2 of the decision of Hon ble Madras High Court in the case of J.M. Bhansali and Ors (supra) wherein it was held that- (2) We are unable to share the view of the Tribunal or the Appellate Asst. Commissioner that in the circumstances of these cases, sufficient cause was not shown. In deciding the question, the most relevant factor to be taken into account is whether the party concerned has bona fide prosecuted some other proceeding because of which delay has occurred in filing the appeal. It may be that, in selecting a particular remedy, the party may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order before any court or any other authority or any other Bench of the Tribunal. This is a mis statement as the appellant have themselves admitted that the delay is caused as they were pursuing the case in Mumbai High Court. (ii) The COD application states that the delay of 12 months (not given in days) it factually is incorrect as the OIO of Commissioner is passed on 13.01.2016, whereas the appeal has been filed on 26.05.2017. The delay thus exceeds 16 months (more than 480 days) (iii) The appeal has been filed in this Hon ble Tribunal more than 55 days of passing of the order of the Hon ble High Court. The grounds states that once the matter was disposed the appellants - respondents consulted their CA who in turn consulted legal counsel regarding future course of action to be taken in the matter .. . The documents filed with the appeal shows that the Advocate before the Hon ble High Court as well as this Hon ble Tribunal is the same and thus the submission regarding consultation of CA cannot be accepted without factual evidence to the effect. 3.1. Ld. AR relied on the provisions of Section 14 of Limitation Act to argue the following. (i) The appellants ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs act, Finance Act,1994 etc:- (i) He argued that the issue of applicability of above two phrases of duly diligence and good faith in case of special Acts have been examined by the Hon ble Supreme Court and various High Courts. The Hon ble Supreme Court in the case of Ketan V. Parekh Vs. Special Director, Dte. Of Enforcement [2012(275) ELT 3(SC)] held that good faith is sine qua non for invoking Sec 14 of Limitation Act, 1963. The Hon ble Court held that as the appellants were conversant with various statutory provisions, considering their conduct, .by no stretch of imagination it can be said that they were bona fide prosecuting remedy before wrong forum. Rather, there was total absence of good faith which is sine qua non for invoking Sec 14 of Limitation Act. (para 23) The detailed findings of the Hon ble Supreme Court in paragraph nos. 19,22,23 and 26 were also brought out during the arguments. (ii) He argued that in similar issue in the case of Patel Brothers Vs. State of Assam and Ors [2017-TIOL-04-SC-VAT] Hon ble Supreme Court held that the approach which is to be adopted by the Court is to examine the provisions of special law to arrive at a conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon ble High Court of Jharkhand at Ranchi wherein the Hon ble High Court dealing with the issue of Chance taking petitioner observed that there is one more reason not to give benefit of Sec 14 of the Limitation Act 1963 is applicable only when the proceeding is bona fide in the Court without jurisdiction. This was with specific reference to the tendencies of those persons who are liable to make payment of tax+interest+penalty to take a chance before this Court. The Hon ble Court categorically observed it ought to be kept in mind by this type chance taking petitioner that they should simultaneously prefer statutory appeals also .. 3.5. Finally, he argued that, in the case of G. Masilamani Vs. CST Chennai, a Coordinate Bench at Madras of this Hon ble Tribunal had, after examining the fact, stated that if this case is leniently considered there shall be a bonus to the dilatory tactics and Revenues interest shall be seriously prejudiced. The scope of sufficient cause can also be examined in light of the findings of the Tribunal in this judgment. He argued that the issue is whether sufficient cause has been demonstrated to justify the failure of filing the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in prosecuting remedy before a wrong forum was considered by a two Judge Bench in State of Goa v. Western Builders (supra) in the context of the provisions contained in Arbitration and Conciliation Act, 1996. The Bench referred to the provisions of the two Acts and observed : There is no provision in the whole of the Act which prohibits discretion of the court. Under Section 14 of the Limitation Act if the party has been bona fidely prosecuting his remedy before the court which has no jurisdiction whether the period spent in that proceedings shall be excluded or not. Learned counsel for the respondent has taken us to the provisions of the Act of 1996: like Section 5, Section 8(1), Section 9, Section 11, sub-sections (4), (6), (9) and sub-section (3) of Section 14, Section 27, Sections 34, 36, 37, 39(2) and (4), Section 41, sub-section (2), Sections 42 and 43 and tried to emphasise with reference to the aforesaid sections that wherever the legislature wanted to give power to the court that has been incorporated in the provisions, therefore, no further power should lie in the hands of the court so as to enable to exclude the period spent in prosecuting the remedy before oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order appealed against and such memorandum 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 (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. It is seen that Tribunal has been granted the power to condone the delay if it is satisfied that there was sufficient cause for not presenting the appeal within the period prescribed under Sub-Section 3 of Section 35B of Central Excise Act. It is also seen that no upper limit has been prescribed for condoning the delay in filing the appeal provided sufficient cause is shown for not presenting the appeal within the prescribed period. 4.1.1. Examination of rival argument indicated that the applicant is relying on the case law wherein higher court s have held that the substantial justice should not be denied on procedural grounds and therefore the provision for condonation of delay should be considered liberally. Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ble Apex Court in the case of M/s. Patel Brothers Vs. State of Assam And Ors -2017-TIOL-04-SC-VAT where the issue was elaborated in para 4 5 which is reproduced as under: 4. Section 81 of the VAT Act also prescribes a limitation period of 60days within which such revision petition is to be preferred to High Court. Since there was a delay of 335 days in filing these revision petitions, these petitions were filed along with applications undersection 5 of the Limitation Act, 1963, seeking condonation of delay. The High Court has dismissed the applications for condonation of delay holding that provisions of Section 5 of the Limitation Act, 1963 are not applicable. For this purpose, the High Court has referred to Section 84 of the VAT Act which makes provisions of Sections 4 and 12 of the Limitation Act, 1963 to such petitions. On that basis, it is held by the High Court that since only Sections 4 and 12 of the Limitation Act, 1963 are made specifically applicable to these proceedings, by necessary implication Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ble Apex Court was concerned with condonation of delay where the statute itself provides is a normal period of limitation and an upper limit of condonation, and grounds thereof, were prescribed. Thereafter Hon ble Apex Court held that Limitation Act is not applicable in these circumstances. 4.1.4. Ld. AR has also relied on decision of Hon ble Bombay High Court in the case of Vikas Shankar Joshi Vs. Addl. Commissioner of Central Excise, Customs Service Tax Raigad Commissionerate . In this case also condonation of delay before Commissioner (Appeals), the appeal was being examined. The Hon ble High Court observed that the benefit of Limitation Act, cannot be extended in these circumstances, and therefore refused to condone the delay beyond the period prescribed under the statue. 4.1.5. Ld. AR has also relied on decision of Hon ble High Court of Mumbai in the case of Flemingo (Duty Free Shop) P. Ltd. Vs. Commr. of Cus. (Appeals), Mumbai-I 2015 (315) E.L.T. 321 (Bom.). He parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (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. It can be seen that in this case as well there is a normal period of limitation and an upper limit of condonation, and grounds for condonation, were prescribed by Customs Act. Therefore without invoking the Limitation Act, condonation could not have been granted 4.1.6. Hon ble High Court of Jharkhand in the case of M/s. Shiv Sahil Construction Pvt. Ltd. Vs. Union of India Ors - 2015-TIOL-2479 JHARKHAND-ST was dealing with condonation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 35. Appeal to High Court -Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order: -Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order\: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Arbitration and Conciliation Act, 1996. The two-Judge Bench referred to earlier decisions in Vidyacharan Shukla v. Khubchand Baghel [AIR 1964 SC 1099], Hukumdev Narain Yadav v. Lalit Narain Mishra (supra), Mangu Ram v. MCD [1976 (1) SCC 392], Patel Naranbhai Marghabhai v. Dhulabhai Galbabhai [JT 1992 (4) SC 381 : 1992 (4) SCC 264] and held: As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation 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 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 35 of the Act and observed: Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed 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 the proviso to Section 125 makes it clear that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, where not only the period of limitation is prescribed but also the grounds on which condonation can be granted are prescribed. However it is seen that, as against the provisions examined in para 4 above, there is no upper limit for period of condonation in the instant case. Thus there is no necessity to invoke the provisions of the Limitation Act, so long as the reasons of delay are covered by the provisions of law. The provisions pertaining to time limit for filing of appeal before CESTAT 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 Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) 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 pre-deposit was not with clean hands. Even after the decision of Hon ble High Court was received the appellants delayed the filing of appeal for a long time. This shows the callous approach. The grounds cited of condonation are as follows: Once the matter was disposed the applicant-respondent consulted their chartered accountant who in turn consulted legal counsel regarding future course of action to be taken in the matter viz. whether to file appeal before the Honorable Supreme Court or not. During such time, the applicant applied for certified copy of the order on 21.04.2017 which was received on 27.04.2017. After internal discussions/deliberations, it was decided that an appeal be filed against the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
