9911796707
TMI Blog2014 (9) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... ance (Department of Revenue), dated 19-2-2013 deserves to be quashed and set aside. Respondent No. 2 is directed to restore and decide the Revision Application, allowing the exclusion of time spent before the wrong forum including the time spent prosecuting remedy with a bona fide belief before the High Court before filing the revision application. - Decided in favor of assessee. - Special Civil Application No. 12794 of 2013 - - - Dated:- 21-8-2013 - M.R. Shah and Sonia Gokani, JJ. Shri B.C. Macwana, Advocate, for the Petitioner. Shri Hriday Buch, Advocate, for the Respondent. JUDGMENT Rule. Learned counsel Mr. Hriday Buch waives service of notice of rule for respondents No. 2 and 3 and the matter is taken up for final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. An application for modification preferred by the petitioner also was rejected by the Commissioner (Appeals) on 27-3-2008. Such order came to be challenged before the Customs, Excise Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal ), which decided the matter on merits. As it was submitted before the Tribunal that the petitioner could not afford the amount of pre-deposit, the Tribunal dismissed the appeal by making observations on merits. Therefore, the petition came to be filed before this Court being Special Civil Application No. 13064 of 2008 requesting this Court to restore the appeal before the Commissioner (Appeals), who had not decided the case on merits. This Court directed the petitioner to make a pre-de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the Tax Appeal was not entertained with a specific clarification that as remedy of appeal was not available to the appellant and since the order of Tribunal was confirmed on jurisdictional ground in the Tax Appeal, such order shall not bar the petitioner to pursue further legal remedies available to him. 10. Accordingly, the petitioner challenged such order of the Commissioner (Appeals) in Revision Application preferred before the Government of India-respondent No. 2. The Revisional Authority on the ground of limitation rejected the application of the petitioner by a detailed discussion of Section 129DD of the Customs Act. It is this order of revisional authority, which denied to consider the issue on merits and dismissed the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of jurisdiction. Revisional Authority, however, has also not taken into account the period from 25-6-2010 to 6-8-2010 while calculating the period of limitation nor has it considered the period spent in pursuing the Tax Appeal, which was rejected on 10-11-2011, and therefore order impugned needs quashment. Moreover, an erroneous application of the decision of the Supreme Court is made to hold that the direction of this Court was to ignore the time-limit prescribed under the statute. The only direction of this Court in Tax Appeal No. 427 of 2011 was to resort to alternative remedy with a view not to render the petitioner remediless by on one hand confirming the order of the Tribunal on jurisdictional ground and on the other hand deba ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
