9911796707
TMI Blog2013 (6) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... n and thereafter appeal was filed in Delhi High Court, under bonafide belief that it had jurisdiction to hear the appeal and that the appellant was pursuing the remedies in wrong court with due diligence. The appellant, thereafter, caused a further delay of 20 days in filing this appeal, which he has not explained. The appellant is not entitled to the benefit of Section 14 of the Limitation Act. This appeal is barred by limitation by 697 days, which has not been sufficiently explained by the appellant. - decided against the assessee. - Custom Appeal No.(16) of 2012 - - - Dated:- 6-8-2012 - Hon. Sunil Ambwani And Hon. A. N. Mittal, JJ. ORDER 1. We have heard Shri Shambhu Chopra, learned counsel appearing for the appellant. Shri S.P. Kesarwani, Addl. Chief Standing Counsel, Central Excise, Customs and Service Tax Department, Government of India, High Court Allahabad appears for the Commissioner of Customs and Central Excise. 2. This appeal under Section 130 (I) of the Customs Act, 1962 is directed against the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), New Delhi dated 17.8.2009 passed in Appeal No.C/379/2006 Q92/09, upholding the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dul, J. 5. On 7.4.2010 in the converted Appeal No.CUSAA 10 of 2009 the Court granted two weeks' further time to deposit 1/3rd amount as a condition for grant of stay. In compliance the petitioner deposited on 29.12.2009 by two demand drafts of ₹ 75,000/- each and on 12.3.2010, two more demand drafts of ₹ 75,000/- each were deposited in compliance with the condition of stay order. 6. On 22.9.2010 the counsel appearing for the respondents raised a plea that in view of Ambica Industries v. Commissioner of Income Tax, 2007 (213) ELT 323 (SC) the Delhi High Court does not have territorial jurisdiction to entertain the appeal. Learned counsel for the appellant prayed for some time to look into the aspect on which the matter was adjourned to 1st October, 2010. The order is quoted as below:- 22.09.2010 Present: Mr. R.K. Handoo with Mr. Aditya Chaudhary, Advocates for the appellant. Mr. Mukesh Anand with Mr. R.C.S. Bhadoria and Mr. Sailesh Tiwari, Advocates for the respondent. CUSAA No.10 of 2009 Learned counsel for the respondent by way of demurrer raises the plea that this Court does not have the territorial jurisdiction to entertain this appeal. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional stay order was passed, which has continued. Even after the order dated 22.09.2010, the appeal has remained pending and various orders/ directions have been issued, including direction to the respondent to file a copy of the enquiry report in respect of the customs officials involved. 6. It is for the jurisdictional High Court to decide the prayer for waiver/ exclusion. However, it does appear that the appellant in the present case had bona fidely filed the appeal in this Court and has been pressing the same, as the Tribunal is located in Delhi. 7. With the aforesaid observations, the present appeal is dismissed as withdrawn with liberty as prayer for. Sanjiv Khanna, J. R.V. Easwar, J. 9. Shri Shambhu Chopra submits that the appellant was diligently and in bonafide belief pursuing the remedy of filing appeal before the Delhi High Court. An interim order was also passed by the Delhi High Court and that an enquiry report was also summoned. Though an objection was taken on 22.9.2010 that the appeal is not maintainable in Delhi High Court, the High Court ultimately allowed the prayer to withdraw the appeal on 5.1.2012. It is submitted that Section 14 has to be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally, without raising any objections or contesting the matter, the appellant withdrew the appeal observing that the issue of jurisdiction was raised on 22.9.2010 and making observations that the appellant was bonafidely pursuing the remedy in the Court. 12. It is further submitted by Shri Kesarwani that although the Delhi High Court permitted the appellant to withdraw the appeal on 5.1.2012, the appeal was filed with a further delay of about 20 days on 25.1.2012. The appeal is reported to be delayed by 1 year and 332 days for which the appellant is not entitled to take benefit of Section 14 of the Limitation Act. Shri Kesarwani submits that the appellant was not bonafidely pursuing the remedies with due diligence in the wrong Court. He and his counsels were fully aware that the Delhi High Court does not have jurisdiction in the matter. An objection was taken as early as on 22.9.2010. It was open to the appellant assisted by expert counsels to withdraw the appeal for filing appeal before the competent jurisdictional High Court. The appellant delayed the matter for 1 year and 4 months, to take advantage of the interim order passed by the Delhi High Court. Further there are no bona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was bonafidely pursuing the appeal in Delhi High Court. After having held that the Delhi High Court did not have territorial jurisdiction, as in accordance with the Suresh Desai and Associates (Supra) and Ambica Industries (Supra), it should have refrained to make any observations in favour of the appellant. 15. In Rabindra Nath Samuel Dawson v. Sivakasi Ors., (1973) 3 SCC 381 the Supreme Court held that where the objection to maintain the previous suit was taken at the very initial stage, benefit of Section 14 of the Limitation Act is not available to the person. 16. In Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department Ors., (2008) 7 SCC 169 the Supreme Court considered the scope of Section 14 of the Limitation Act and held in paragraphs 21 and 22 as follows:- 21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service : (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation should not affect a person, who was honestly doing his best to get his case tried on merits but failed because the Court was unable to give him such a trial. The Court will condone the delay, if the litigious activity was bonafide, as the equity underline Section 14 should be applied to its fullest extent. The position, however, would be otherwise, where a person is not bonafidely pursuing the remedy in the wrong Court. In this case the appellant assisted and advised by the counsels expert in the subject first filed a writ petition, which he requested to be converted into appeal. He was granted an interim order for which he sought extension of time to deposit the amount. On 22nd September, 2010 an objection was taken by the department that the appeal does not lie in the Delhi High Court in view of the Ambica Industries case (Supra). It was open to the appellant to withdraw the appeal and to approach the Allahabad High Court. The counsels, however, took time to look into the aspects and thereafter took one year and three months, during which they went on getting the appeal adjourned to withdraw the appeal. They did not contest the matter and meekly surrendered, after having e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication / appeal and is dragging the matter till date. (emphasis supplied). 20. In Ketan V. Parekh v. Sepcial Director, Directorate of Enforcement, 2012 (275) E.L.T. 3 (S.C.) the Supreme Court held in paras 21 to 25 as follows:- 21. The aforesaid three judgments do support the argument of Shri Ranjit Kumar that even though Section 5 of the Limitation Act cannot be invoked for condonation of delay in filing an appeal under the Act because that would tantamount to amendment of the legislative mandate by which special period of limitation has been prescribed, Section 14 can be invoked in an appropriate case for exclusion of the time during which the aggrieved person may have prosecuted with due diligence remedy before a wrong forum, but on a careful scrutiny of the record of these cases, we are satisfied that Section 14 of the Limitation Act cannot be relied upon for exclusion of the period during which the writ petitions filed by the appellants remained pending before the Delhi High Court. In the applications filed by them before the Bombay High Court, the appellants had sought condonation of 1056 days' delay by stating that after receiving copy of the order passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court. It is, however, open to the Appellant's to avail of the appropriate remedy in terms of para 45 of the above judgment of the Supreme Court. 3.3 Hence, pursuant to the said order passed by Hon'ble Delhi High Court the Appellant above named prefers an appeal before this Hon'ble Bombay High Court. 3.4 Under the said circumstances the Appellant most humbly prays that this Hon'ble Court may be pleased to condone the delay. 3.5 It is submitted that the delay, in filing of the present Appeal has not prejudiced the Respondent in any manner, whatsoever, and, therefore, this Hon'ble Court be pleased to condone the said delay. 3.6 It is, further submitted that the delay of 1056 days in filing the present Appeal was bonafide, unintentional and inadvertent. 22. A careful reading of the above reproduced averments shows that there was not even a whisper in the applications field by the appellants that they had been prosecuting remedy before a wrong forum, i.e. the Delhi High Court with due diligence and in good faith. Not only this, the prayer made in the applications was for condonation of 1056 days' delay and not for exclusion of the time spent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed to indulge in forum shopping. It has not at all surprised us that after having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance of the direction given by the Appellate Tribunal and, by no stretch of imagination, it can be said that they were bona fide prosecuting remedy before a wrong forum. Rather, there was total absence of good faith, which is sine qua non for invoking Section 14 of the Limitation Act. 24. The issue deserves to be considered from another angle. By taking advantage of the liberty given by the learned Single Judge of the Delhi High Court, the appellants invoked the jurisdiction of the Bombay High Court under Section 35 of the Act. However, while doing so, they violated the time limit specified in order dated 26.7.2010 which, in turn, is b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
