2017 (12) TMI 1142 - AT - Service Tax

Condonation of delay in filing appeal - applicant claim that provisions of Section 14 of the Limitation Act, would apply to the facts of the present case and hence the period during which the writ/appeal pending before Hon ble Bombay High Court should be excluded for calculating the period of limitation for filing the appeal of the cross-objection - Section 35B (3), (4) & (5) of CEA. Held that - Tribunal has been granted the power to condone the delay if it is satisfied that there was sufficient cause for not presenting the appeal within the period prescribed under Sub-Section 3 of Section 35B of Central Excise Act. It is also seen that no upper limit has been prescribed for condoning the delay in filing the appeal provided sufficient cause is shown for not presenting the appeal within the prescribed period. Hon ble Apex Court in the case of Ketan V. Parekh Versus Special Director, Directorate of Enforcement and another. 2011 (11) TMI 62 - SUPREME COURT OF INDIA , has interpreted Section 29(2) of the Limitation Act, by observing that wherever the law prescribed a complete code prescribing time limit as well as power of condonation like an upper limit for condonation of delay or grounds of condonation, the law of limitation cannot be invoked to by-pass the same. In the instant case, laws of limitation cannot be invoked as we are dealing with a complete code prescribed under Central Excise Act, where not only the period of limitation is prescribed but also the grounds on which condonation can be granted are prescribed. However it is seen that, as against the provisions examined in para 4 above, there is no upper limit for period of condonation in the instant case. Thus there is no necessity to invoke the provisions of the Limitation Act, so long as the reasons of delay are covered by the provisions of law. Whether there was reasonable cause for delay? - Held that - when various High Courts had taken a clear stand on the issue the appellants approach to Hon ble High Court on the same issue of pre-deposit was not with clean hands. Even after the decision of Hon ble High Court was received the appellants delayed the filing of appeal for a long time. This shows the callous approach. Application for COD dismissed.

Issues Involved:
1. Condonation of delay in filing an appeal.
2. Applicability of Section 14 of the Limitation Act.
3. Bona fide prosecution of the case in the wrong forum.
4. Examination of sufficient cause for delay.
5. Relevance of judicial precedents and statutory provisions.

Issue-wise Detailed Analysis:

1. Condonation of Delay in Filing an Appeal:
The primary issue is whether the delay in filing the appeal by M/s. Team Global Logistics Pvt. Ltd. should be condoned. The appeal was filed after a delay of more than 16 months. The applicant argued that the delay was due to the time spent pursuing a writ petition in the Hon’ble High Court of Mumbai, which was ultimately dismissed on the grounds of alternate remedy. The applicant claimed that the period during which the writ was pending should be excluded for calculating the period of limitation for filing the appeal, invoking Section 14 of the Limitation Act.

2. Applicability of Section 14 of the Limitation Act:
The applicant contended that Section 14 of the Limitation Act, which allows for the exclusion of time spent in bona fide prosecution of a case in a court without jurisdiction, should apply. They relied on various judicial precedents, including the case of Collector, Land Acquisition Anantnag And Another Vs. MST. Katiji and Others, where the Hon’ble Apex Court held that the expression “sufficient cause” is elastic enough to enable courts to do substantial justice.

3. Bona Fide Prosecution of the Case in the Wrong Forum:
The respondent opposed the condonation, arguing that the applicant’s approach to the High Court was not bona fide. They contended that the applicant was aware that the correct forum for appeal was the Tribunal but chose to file a writ petition to avoid the mandatory pre-deposit required under Section 35F of the Central Excise Act. The respondent cited judgments from various High Courts, including Ganesh Yadav Vs. UOI and Anjani Technoplast Vs. CC, which emphasized the mandatory nature of the pre-deposit and argued that the applicant’s actions were not in good faith.

4. Examination of Sufficient Cause for Delay:
The Tribunal examined whether there was a sufficient cause for the delay. It was noted that the applicant applied for the certified copy of the High Court’s order 21 days after the writ was dismissed and filed the appeal almost a month after receiving the order. The Tribunal found this delay to be indicative of a lack of diligence and bona fide intention. The Tribunal also referred to the decision of the Hon’ble High Court of Mumbai in the case of Nimbus Communications Limited Vs. Commissioner of S.T. Mumbai-IV, where it was held that the pre-deposit requirement could not be waived, and approaching the High Court on this ground was not justified.

5. Relevance of Judicial Precedents and Statutory Provisions:
The Tribunal considered various judicial precedents cited by both parties. The respondent relied on decisions such as Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur, which held that the Limitation Act cannot be invoked to extend the period of limitation prescribed under special statutes like the Central Excise Act. The Tribunal observed that the Central Excise Act provides a complete code with specific provisions for the time limit and grounds for condonation of delay, and there is no upper limit for the period of condonation in this case.

Conclusion:
The Tribunal concluded that the applicant did not demonstrate sufficient cause for the delay in filing the appeal. The approach to the High Court was not bona fide, and the delay after the High Court’s decision indicated a lack of diligence. Therefore, the application for condonation of delay was dismissed.

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