2015 (10) TMI 2415 - HC - Service Tax

Condonation of Delay under Section 14 of Limitation Act, 1963 Appellant claims to exclude time consumed in disposal of writ petition before Court in computation of delay Appellant contends that matter has not been properly appreciated by Commissioner (Appeals) and delay may be condoned which is approximately of 16 months and matter may be remanded back Revenue contends that no error committed by Commissioner (Appeals) - Delay was not condonable under section 85(3A) of Finance Act, 1994 Appeal could have been preferred within 60 30 days maximum if preferred beyond 90 days, delay is not condonable - Section 14 is not applicable as there was no want of jurisdiction. Held That - No reason found to entertain this writ petition as period of limitation is sixty days and delay can be condoned by Commissioner (Appeals) if there is reasonable reason but not beyond thirty days - No error committed by Commissioner(Appeal) in not condoning delay as it was beyond period of condonable delay Section 14 not applicable as writ petition which was preferred after limitation period was over for preferring appeal U/s 85(3A) and is applicable only when the proceeding is bonafide in court without jurisdiction Appeal dismissed Decided in favour of Revenue.

Issues Involved:
1. Condonation of delay in filing appeals under Section 85(3A) of the Finance Act, 1994.
2. Applicability of Section 14(2) of the Limitation Act, 1963 for condonation of delay.
3. Jurisdictional aspects and the validity of the writ petition filed by the petitioner.

Detailed Analysis:

1. Condonation of Delay in Filing Appeals:
The primary issue in this case concerns the condonation of delay in filing appeals under Section 85(3A) of the Finance Act, 1994. The petitioner challenged the order dated 17th October 2014, passed by the Commissioner (Appeals), Central Excise and Service Tax, dismissing the appeals on the grounds of being filed beyond the condonable delay period. The court emphasized that the Commissioner (Appeals) has no power to condone delays beyond the statutory period of 30 days after the initial 60 days, making a total of 90 days. The petitioner's appeal was filed approximately 16 months after the original order, far exceeding the permissible period. The court cited the Supreme Court's decision in Singh Enterprises v. Commissioner of Central Excise Jamshedpur and others, which affirmed that statutory authorities cannot condone delays beyond the prescribed period.

2. Applicability of Section 14(2) of the Limitation Act, 1963:
The petitioner sought the benefit of Section 14(2) of the Limitation Act, 1963, which allows for the exclusion of time spent in bona fide legal proceedings in a court without jurisdiction. The petitioner argued that the time spent in pursuing a writ petition should be excluded from the limitation period. However, the court found that Section 14(2) was inapplicable because the writ petition was filed after the expiration of the limitation period for filing an appeal. Additionally, the court noted that Section 14 applies only when the initial court lacked jurisdiction, which was not the case here. The petitioner had taken a chance by filing a writ petition directly in the High Court, which did not stop the limitation period from running.

3. Jurisdictional Aspects and Validity of the Writ Petition:
The court addressed the jurisdictional aspects of the writ petition filed by the petitioner. It was observed that the petitioner had filed the writ petition after the limitation period for filing an appeal had expired. The court emphasized that filing a writ petition does not extend or toll the statutory limitation period for filing an appeal. The court also highlighted the tendency of some petitioners to bypass statutory appeals by directly approaching the High Court, which is done at their own risk. The court agreed with the Bombay High Court's decision, which stated that petitioners cannot take advantage of their own wrongs by allowing the limitation period to lapse while pursuing alternative remedies.

Conclusion:
The court dismissed the writ petition, finding no error in the Commissioner (Appeals)'s decision to dismiss the appeals for being filed beyond the condonable delay period. The court reiterated that statutory authorities have no power to condone delays beyond the prescribed period, and Section 14(2) of the Limitation Act, 1963, was inapplicable in this case. The petitioner was advised to have filed statutory appeals within the limitation period or at least within the condonable delay period to avoid such dismissals.

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