2015 (6) TMI 298 - HC - Central Excise

Maintainability of appeal - Bar of limitation - order was pronounced in the open court - whether the order passed by the first respondent rejecting the revision petition as barred by limitation is just and proper - Held that - In terms of sub-section (2) of Section 35EE of the Central Excise Act, the application for revision of any order passed under Section 35A of the Act shall be filed within 3 months from the date of communication to the applicant of the order, against which, the application is being made in terms of proviso under sub-section (2) of Section 35EE, the Central Government, the Revisional Authority, may if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of 3 months, allow it to be presented within a further period of 3 months. Therefore, the period of limitation as stipulated in the said provision is 3 months and the authority has got power to condone the delay for a further period of three months provided the applicant shows sufficient cause. While computing limitation, the starting point of limitation should have been the date on which the order passed by the Tribunal was communicated to the petitioner i.e., 24-3-2011. The learned standing counsel appearing for the respondents would contend that should not be the date, but the date on which the order passed by the Tribunal, since the petitioner was represented by counsel before the Tribunal. It is to be noted that the Tribunal returned the papers to the petitioner for being presented before the proper forum. The appeal was dismissed as not maintainable and not on merits. Therefore, unless and until the petitioner is intimated with the order along with original papers, the petitioner cannot approach the revisional authority. Therefore, in the petitioner s case, the period of limitation should commence to run from the date on which the petitioner received the certified copy of the order passed by the Tribunal along with papers. - Decided in favour of assesee.

Issues Involved:
1. Whether the order rejecting the revision petition as time-barred is just and proper.
2. Computation of the limitation period for filing the revision petition.
3. Applicability of Section 14(2) of the Limitation Act.
4. Whether the petitioner was bona fide in prosecuting the appeal before the wrong forum.

Issue-Wise Detailed Analysis:

1. Whether the order rejecting the revision petition as time-barred is just and proper:
The primary issue is whether the first respondent's order rejecting the revision petition as time-barred under Section 35EE of the Central Excise Act, 1944, is justified. The court examined the sequence of events and the period during which the appeal was pending before the CESTAT. The court noted that the petitioner filed the revision petition within three months and 14 days after receiving the Tribunal's order on 24-3-2011. The court concluded that the delay of 14 days was not inordinate and could have been condoned by the revisional authority.

2. Computation of the limitation period for filing the revision petition:
Section 35EE of the Central Excise Act stipulates that a revision application must be filed within three months from the date of communication of the order, with a further condonable period of three months. The court emphasized that the starting point for computing the limitation should be the date on which the petitioner received the certified copy of the Tribunal's order along with the returned papers, which was 24-3-2011. Therefore, the revision petition filed on 8-7-2011 was within the permissible period, including the condonable delay of 14 days.

3. Applicability of Section 14(2) of the Limitation Act:
The respondents argued that Section 14(2) of the Limitation Act, which allows for the exclusion of time spent in bona fide proceedings before a wrong forum, was not applicable. They cited precedents from the Supreme Court and the Rajasthan High Court. However, the court did not find it necessary to delve deeply into this argument, as it focused on the specific provisions of Section 35EE and the bona fide actions of the petitioner.

4. Whether the petitioner was bona fide in prosecuting the appeal before the wrong forum:
The court acknowledged that the petitioner was under a bona fide belief that an appeal lay before the Tribunal. The Tribunal entertained the appeal, issued notices, and granted interim relief, which further reinforced the petitioner's belief. The Department did not challenge the maintainability of the appeal until 2011. The court found that the petitioner acted in good faith and diligently pursued the matter before the wrong forum due to a genuine misunderstanding.

Conclusion:
The court allowed the writ petitions, set aside the impugned orders, and condoned the delay in filing the revision petitions. The petitioner was directed to deposit a further sum of Rs. 2,50,000/- with the Deputy Commissioner of Central Excise within four weeks. Upon compliance, the first respondent was instructed to issue an adjudication notice, conduct a personal hearing, and dispose of the matter on merits. No costs were awarded, and connected miscellaneous petitions were closed.

← Previous Next →