Time spent before wrong forum is excludable for computing limitation before Commissioner(A) - No error in order of Tribunal restoring appeal before Commissioner (A) - Revenue's appeal dismissed: High Court
By TIOL News Service
HYDERABAD, NOV 18, 2014: THE respondent is a manufacturer of excisable goods. Aggrieved by an order passed by original authority involving a demand of Rs 19 ,96,410 /-, the respondent filed an appeal before the Tribunal instead of before the Commissioner (Appeals). The Tribunal rejected/ returned the appeal through its order, dated 28.09.2006 on the ground that it is to be presented before the Commissioner (Appeals) and not the Tribunal. Then they filed an appeal before the Commissioner (Appeals) and the same was dismissed as time barred. The respondents filed an appeal against the order of Commissioner (Appeals) and the Tribunal allowed the same by holding that time spent before a wrong forum is excludable for computing the limitation under Section 128 of the Customs Act, 1962 or Section 35 of the Central Excise Act, 1944 - 2007-TIOL-2322-CESTAT-BANG.
Aggrieved by the above order of Tribunal, revenue is in appeal before the High Court.
The counsel for revenue argued that Section 35 of the Act is a self-contained code, insofar as limitation for filing of appeals is concerned, and that Sections 4 to 24 of the Limitation Act stand excluded, in relation to the proceedings thereunder and that the view taken by the Tribunal is contrary not only to the specific provisions of law but also to the binding precedents. Section 35 of the Act does not only prescribe the period of limitation but also the extent to which the delay can be condoned and since the respondent preferred the appeal beyond the period of original limitation, as well the extendible time, there was no way, the appeal could have been entertained.
After hearing both sides, the High Court held:
The Limitation Act as well as the special enactments stipulate the period not only for the original proceedings, but also for appeals and applications. If the limitation is for presentation of original proceedings, the question of condonation of any delay even for the best of the reasons, does not arise. However, latitude is shown by the Parliament itself, in respect of limitation for filing of appeals and other miscellaneous proceedings. Obviously because an appeal is treated as continuation of original proceedings, provision is made for condonation of delay in pursuing such remedies, subject however to the satisfaction of the Court or Forum.
The second point of distinction, which needs to be kept in mind, is the one between the condonation of delay on the one hand and exclusion of period spent in pursuing the remedy before a wrong Forum, on the other hand. The first is covered by Section 5, which occurs in Part II of the Limitation Act and the second is dealt with under various provisions under Chapter III of that enactment. While condonation is invariably in respect of the proceedings, which are not original in nature, exclusion of time takes in its fold the original proceedings as well as the appellate proceedings. Further, the condonation of delay is in the discretion of the Court or Forum, whereas exclusion of time under Section 14 is a mandate under law, without leaving any scope for subjectivity.
The scope of applicability of Section 14 of the Limitation Act to the proceedings under the Act was never in doubt. The Tribunal made a specific reference to Section 14 of the Limitation Act. No reason to interfere with the order passed by the Tribunal.
Accordingly, the High Court dismissed the appeal filed by the department.
(See 2014-TIOL-1978-HC-AP-CX)
