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TMI Blog1992 (7) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Additional Collector in similar matters and since those appeals were filed before the Tribunal, this appeal by inadvertence was filed by the applicants/appellants even though the same should have been filed before the Collector of Central Excise (Appeals). 4. However, Shri Bagaria, learned Counsel, contended that the applicants are entitled for the benefit of Section 29 of the Limitation Act, 1963 read with Section 14 of the Act ibid. In this connection, he relied on the following decisions : (i) 1976 (27) ITR 25 in the case of V.P. Misra and Others v. Commissioner of Income Tax, Lucknow and Others; (ii) Sales Tax Cases : Vol. 38 : Page-543 in the case of Commissioner of Sales Tax, U.P. v. Madan Lal Das Sons; (iii) 1976 (1) Supreme Court Cases: 392 in the case of Mangu Ram v. Municipal Corporation of Delhi; (iv) AIR 1990 Calcutta 380 in the case of Anjan Choudhury v. Anandaneer Co-operative Registered Housing Society and Others. 5. The learned J.D.R., Shri Choudhuri stated that the Customs Act is a special Act and there is a special provision regarding the period of limitation within which the appeal has to be filed and the period cannot be extended. 6. In re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Rani s case, the time limit of sixty days laid down in sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the comi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late authority. In U.N. Mitra s Law of Limitation and Prescription, 10th Edition : 1992 at page-315, it is observed as under : Scope : Whether the plaintiff was entitled to the benefit of Section 14 of the Limitation Act (1908), was not to be decided by the Court directing the return of the plaint to the proper Court. Such a question, if raised and permissible under law, can be raised before the Court to which the plaint is represented. Courts of law should not attempt to fetter the discretion of other Courts or tribunals.... A citation in the case of Raj Ranjeet v. Bind Bahadur Singh, reported in 1973-A11.-WR- 611, was given in that very observation. Therefore, these are the questions which may be left to be decided by the Collector of Central Excise (Appeals). 10A. But the learned Advocate, Shri Bagaria vehemently pleaded that what the applicants are to the Tribunal is to make an observation that the period spent by them before this Tribunal be excluded. But if such an observation is made, that will have a direct bearing on the delay in filing the appeal before the Collector of Central Excise (Appeals). Such an observation will have the effect of enlarging the period of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the appellant has prosecuted the Land Acquisition Proceedings and these Writ proceedings, including this appeal, in good faith and with due diligence. The court must also consider the question as to whether, when the Division Bench dismissed the claim for the excess area on the ground that no claim therefor could be made in Land Acquisition proceeding and when the Writ Court dismissed the writ petition on the ground that it could not decide the disputed questions of facts involved, they did so for causes analogous or akin to want of jurisdiction within the meaning of Section 14 of the Limitation Act. If, as pointed out by the Supreme Court in Scksaria Cotton Mills (AIR 1953 S.C. 278) (supra), the Learned Lawyers may not always know what advice to give, a party, not aided by a lawyer, may, even with due diligence, choose a wrong forum or remedy in good faith." This decision is applicable to the facts of this case. It is now seen that in all such cases, it is for the Collector of Central Excise (Appeals) to decide whether the appellant is entitled for the benefit of Section 14 of the Limitation Act and whether the provisions of Customs Act, 1962 expressly bar the application of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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