2015 (1) TMI 22 - HC - Customs

Condonation of delay - Petitioner submitted that the said application be considered sympathetically and reasonably, because the delay in filing the same has been occasioned on account of the Petitioner being advised to file a Writ Petition under Article 226 of the Constitution of India in this Court to challenge the order in original dated 27th June, 2011 - it is only when this Court passed the order that the Writ Petition cannot be entertained, as there is an alternate equally efficacious remedy of a statutory Appeal that the Petitioner became aware of the legal provision and the time limit within which the said Appeal has to be filed. Held that - the Hon ble Supreme Court held in the case of Mohinder Singh (1996 (8) TMI 513 - SUPREME COURT) that once limitation starts running, till its running is stopped by an order of the competent Civil Court or competent Authority, it cannot stop. It overruled the earlier Judgment in the case of P. K. Kutty Anuja Raja and Anr. vs. State of Kerala and Anr. reported in 1996 (2) TMI 532 - SUPREME COURT only because no argument was advanced as regards the applicability of doctrine of merger. The Hon ble Supreme Court entertained the SLP and granted leave to Appeal as also stay. The time spent in prosecuting the proceedings before the Hon ble Supreme Court and which is bonafide was permitted to be excluded. Pertinently, the test laid down is applicable in a case where a Appeal is filed that being a continuation of the lis, its pendency can be relied upon to claim the benefit. A Writ Petition s pendency will not stand on the same footing always. If the time has not stopped running, then, none of the principles relied upon by the Petitioner will assist it. As we have noted above, in this case, Writ Petition was pending in this Court, but neither it was entertained nor any interim relief was granted, leave alone admitting it. 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. In other words, the Petitioner is trying to take advantage of its own wrong committed earlier in approaching this Court, though knowing fully well that it had refused to exercise jurisdiction, because the alternate efficacious remedy of Appeal to the Commissioner of Customs was provided by law. The Petitioner did not take steps to file such an Appeal even during the pendency of the Writ Petition and allowed the time to run. In these circumstances, we cannot extend any benefit, as that would allow the Petitioner to take advantage of its own wrong. As a result of the above discussion, the Writ Petition fails. Rule is discharged. - Decided against assesse.

Issues Involved:
1. Legality and validity of the order dated 27th December 2012, dismissing the application for condonation of delay by the Commissioner of Customs (Appeals).
2. Applicability of Section 14(2) and Section 5 of the Limitation Act, 1963 in the context of filing an appeal under Section 128(1) of the Customs Act, 1962.
3. Whether the Commissioner (Appeals) acted within the jurisdiction by dismissing the appeal as barred by limitation.

Detailed Analysis:

1. Legality and Validity of the Order Dismissing the Application for Condonation of Delay:
The petitioner challenged the order dated 27th December 2012, dismissing their application for condonation of delay in filing an appeal before the Commissioner of Customs (Appeals). The petitioner argued that the delay was caused due to their reliance on legal advice to file a writ petition under Article 226 of the Constitution of India, which was pending from 30th August 2011 to 30th November 2011. The petitioner contended that this period should be excluded while computing the limitation period.

The court noted that the appeal was filed on 12th December 2011, beyond the 90-day period stipulated under Section 128(1) of the Customs Act, 1962. The Commissioner (Appeals) dismissed the appeal, stating that there was no jurisdiction to condone a delay beyond the total period of 90 days. The court upheld this decision, emphasizing that the Commissioner (Appeals) acted within the legal parameters and did not err in dismissing the appeal as time-barred.

2. Applicability of Section 14(2) and Section 5 of the Limitation Act, 1963:
The petitioner argued that the time spent in prosecuting the writ petition should be excluded under Section 14(2) of the Limitation Act, 1963. The court examined whether Section 14(2) could be invoked to exclude the period during which the petitioner was prosecuting the writ petition in good faith. The court assumed, for argument's sake, that the Commissioner (Appeals) is a "court" within the meaning of Section 14(2) and that the writ petition was a civil proceeding.

However, the court concluded that even if Section 14(2) applied, it could not override the specific limitation period prescribed under Section 128(1) of the Customs Act, 1962. The court emphasized that Section 5 of the Limitation Act, which allows for the extension of the prescribed period in certain cases, is restricted by the proviso to Section 128(1) of the Customs Act, which limits the extension to a further period of 30 days only.

3. Jurisdiction of the Commissioner (Appeals):
The court examined whether the Commissioner (Appeals) exercised jurisdiction erroneously or failed to exercise it by dismissing the appeal as barred by limitation. The court noted that the petitioner did not file the appeal within the initial 60-day period or the additional 30-day period allowed under the proviso to Section 128(1) of the Customs Act. The court held that the Commissioner (Appeals) acted within the jurisdiction by dismissing the appeal, as the statutory framework did not permit condoning a delay beyond the total period of 90 days.

The court also addressed the petitioner's reliance on various judicial precedents, including the Supreme Court's decision in Ketan Parekh vs. Special Director, Directorate of Enforcement, and concluded that these precedents did not support the petitioner's contention that Section 14(2) of the Limitation Act could be invoked to extend the limitation period under the Customs Act.

Conclusion:
The court dismissed the writ petition, holding that the Commissioner (Appeals) acted within the legal framework by dismissing the appeal as time-barred. The court emphasized that the specific limitation period prescribed under Section 128(1) of the Customs Act, 1962, could not be extended by invoking Section 14(2) or Section 5 of the Limitation Act, 1963. The court also rejected the petitioner's argument that the time spent in prosecuting the writ petition should be excluded, as the statutory framework did not permit such exclusion.

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