2016 (5) TMI 382 - HC - Central Excise

Condonation of delay - 2192 days - Delay in filing appeal happened because first the appellant had filed the appeal before the Gujarat High Court who was not having the territorial jurisdiction to entertain an appeal - Appeal before the Gujarat High Court was in fact filed in time - Held that - there is no doubt that the Appellants were pursuing their remedy in a Court . The only question was one of lack of territorial jurisdiction. There is also no dispute that the Appeal before the Gujarat High Court was in fact filed in time. The entire period, therefore, from the time of filing of the Appeal in the Gujarat High Court till its disposal as above by that Court must, in our view, be fairly excluded for the purposes of limitation. If that is not done, great injustice and unfairness will result. The direction of that High Court, with respect, is that the papers in each of these Appeals be returned to the respective Appellants / their Advocates for presentation to the Competent Appellate Court, which is this Court. Therefore, for the purpose of computing the delay to be condoned, if any, we must take first the two dates that lie at the extremities, viz., the date of receipt of the order appealed against and the date of filing of the Appeal in the present Court. From this period, the entire period from the date of filing of the Appeal in the Gujarat High Court to the date of its disposal by that High Court is to be excluded. If the remaining period is found to be 180 days or less, then there is no question of any application being necessary to condone the delay and the Appeal is in time. It is only if this remaining period exceeds 180 days that the Appellant will be required to file a application seeking condonation of delay and setting out the reasons or cause which in the Appellant s opinion is sufficient. - Notice of Motion allowed

Summary

Issues:
Delay in filing Appeals condonation

Issue 1: Delay in filing Appeals

The judgment addresses the delay in filing the Appeals and the subsequent condonation sought by the Appellants. The Appeals arose from orders passed by the Customs, Excise & Service Tax Appellate Tribunal, with subsequent proceedings before the Gujarat High Court. The Gujarat High Court dismissed the Appeal due to lack of territorial jurisdiction, prompting the Appellants to file the present Appeal in the High Court of Bombay. The Appellants sought condonation of a delay of 2192 days. The Court considered the provisions of Section 35-G(2-A) of the Central Excise Act, 1944, which allows for the admission of an Appeal after the prescribed period if sufficient cause is shown. The Court also referred to Section 14 of the Limitation Act, 1963, which excludes the time spent in prosecuting a proceeding before an incorrect forum. Various authorities were cited to support the application of Section 14 in similar cases, emphasizing the need for a liberal interpretation to advance justice.

Issue 2: Application of Section 14 of the Limitation Act

The judgment extensively discusses the application of Section 14 of the Limitation Act, 1963, in the context of the present case. Reference is made to previous court decisions, including the Supreme Court rulings in M.P. Steel Corporation v. Commissioner of Central Excise and Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department. The Court highlighted the five conditions for invoking and applying Section 14, emphasizing the need for both proceedings to be civil, prosecuted with due diligence, and related to the same matter in issue. The Supreme Court's stance on liberally construing Section 14 to serve the cause of justice was reiterated, stressing the exclusion of time spent in pursuing a remedy before an incorrect forum. The judgment emphasized that as long as the party pursues a legal remedy in good faith, the time spent in the deficient proceeding should be excluded to prevent injustice.

Issue 3: Condonation of Delay

The Court ultimately decided to condone the delay in filing the Appeals after considering the circumstances and the explanation provided in the Affidavit. The time spent in prosecuting the Appeal before the Gujarat High Court was deemed necessary to be excluded for the purposes of limitation. The Court emphasized that if the remaining period after excluding the time spent in the incorrect forum is 180 days or less, no application for condonation of delay is required. In this case, the Court found sufficient reason to condone the delay and allowed the Notice of Motion in favor of the Appellants without imposing any costs.

This comprehensive analysis of the judgment highlights the key legal issues, the application of relevant statutory provisions, and the Court's decision to condone the delay in filing the Appeals based on the principles of justice and fairness.