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TMI Blog2014 (9) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... in the meaning of Section 14 of the 1963 Act. Section 14 of the 1963 Act is applicable to the proceedings under the 1962 Act in respect of an appeal provided under Section 128 and the time spent in the High Court in the abortive attempt to invoke its jurisdiction under Articles 226/227 of the Constitution will have to be excluded. After excluding the time in pursuing the litigation, the appeal filed before the Commissioner (Appeals) would be within the period of limitation. The bona fides of the petitioner in pursuing the remedy under Articles 226/227 of the Constitution was never in dispute. Accordingly, the writ petition is allowed and the impugned order dated 27-11-2013 (Annexure P-14) is set aside. - Decided in favor of assessee. - CWP No. 27647 of 2013 - - - Dated:- 30-9-2014 - Ajay Kumar Mittal and Jaspal Singh, JJ. Shri Jagmohan Bansal, Advocate, for the Petitioner. Shri Sunish Bindlish, Advocate, for the Respondent. JUDGMENT [Judgment per : Ajay Kumar Mittal, J.]. - In this writ petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari for quashing the Order-in-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 18-3-2011 (Annexure P-6) allowed the writ petition [2013 (290) E.L.T. 207 (P H)]. The assessment order dated 10-1-2011 was quashed and the matter was remanded to the Assessing Officer for deciding the same afresh in accordance with law. After that, on imported consignments, bill of entry was assessed on transaction value (Annexure P-7). In January, 2013, the respondent started making assessment on the basis of formula laid down by the Commissioner of Customs, Nhava Sheva. In April, 2013, one container of Zinc Skimming was imported by the petitioner from Metaenterprices Ltd., United Kingdom. The petitioner filed bill of entry No. 9983040, dated 29-4-2013 along with copy of quality certificate, commercial invoice and packing list. The respondent drew the samples and sent the same for test to the Central Revenue Control Laboratory (CRCL), New Delhi and received the report in the third week of May, 2013. The Customs House Agent of the petitioner visited the office of the respondent and he was shown the copy of the test report. As per the test report, total zinc contents were 70% and metallic contents were 8%. The petitioner declared the value of the goods as USD 605 PMT. It was ask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of deciding the lis provide as follows :- 14. Exclusion of time of proceeding bona fide in Court without jurisdiction. - (1) In computing the period 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 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. (3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plying this provision, it has to be kept in mind that an element of mistake is inherent in the invocation of Section 14 and it is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. 7. Under Section 29(2) of the 1963 Act, Sections 4 to 24 (inclusive) shall apply to the special statute only in so far as, and to the extent, they are not expressly excluded by such special or local law. If none of them are excluded, then in that situation all of them would be applicable. In our opinion, the language mentioned in Section 29(2) of the 1963 Act does not require that the special statute should expressly provide for exclusion of specific provision but it is to be gathered from the substance of the language mentioned in the statute whether the effect thereof is nothing but exclusionary. The Supreme Court in Union of India v. Popular Construction - AIR 2001 SC 4010 while analyzing Section 29(2) of the 1963 Act in view of its earlier decision in Hukumdev Narain Yadav v. Lalit Narain Mishra - AIR 1974 SC 480 had observed as under :- Apart from the language, express exclusion may follow from the scheme and object of the spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not from the terms of the 1963 Act but by the provisions of the 1962 Act relating to filing of appeal. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying Section 14, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the Court is unable to give him such a trial, would not be applicable to an appeal filed under Section 128 of the 1962 Act. The principle is clearly applicable not only to a case in which a litigant brings his application in the Court, that is, a Court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong Court in consequence of bona fide mistake or law or defect of procedure. Neither there is any express provision nor by necessary implication, it could be concluded that applicability of Section 14 of 1963 Act to an appeal filed under Section 128 of the 1962 Act would stand excluded. Thus, having regard to the intention of the legislature, this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken dilige ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in State of Goa v. M/s. Western Builders, AIR 2006 SC 2575 held that Section 14 of the 1963 Act is applicable to Section 34 of the Arbitration and Conciliation Act, 1996 as there is no specific prohibition and statute should be interpreted which advances the cause of justice. This view was reiterated by three Judges Bench of the Apex Court in M/s. Consolidated Engg. Enterprises v. Principal Secretary, Irrigation Department and Others, (2008) 7 SCC 169. 12. The judgments in Hukumdev Narain Yadav and Popular Construction s cases (supra); Gopal Sardar v. Karuna Sardar - AIR 2004 SC 3068; Commissioner of Customs and Central Excise v. Hongo India (P) Ltd. - 2009 (236) E.L.T. 417 (S.C.); Union of India v. Jagadish Prasad Jalan Nandalal - 2012 (286) E.L.T. 525 (Cal) (FB); Raj Chemicals v. Union of India - 2013 (287) E.L.T. 145 (Bom.) (DB) and Kaizen Organics Pvt. Ltd. v. UOI - 2013 (293) E.L.T. 326 (Raj.) (DB) relied upon by learned Counsel for the respondents are relating to applicability of Section 5 of 1963 Act. Section 5 of the 1963 Act falls under Part II relating to Extension of prescribed period in certain cases for limitation of suits, appeals and application. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablishments Act, 1947 to hear and decide appeals was a Court within the meaning of Section 14 of the 1963 Act and the proceedings before him were civil proceedings. It was observed as under :- 15. Applying the above principles in the instant case, we are of the opinion that the Deputy Commissioner of Labour (Appeals), which was an Authority constituted under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 to hear and decide appeals, was a Court within the meaning of Section 14 of the Limitation Act and the proceedings pending before him were civil proceedings. It is not disputed that the appellant could file an appeal before the Local Board of the Bank, which was purely a departmental appeal. In this view of the matter, the entire period of time from the date of institution of the departmental appeal as also the period from the date of institution of the appeal under Section 41(2) before the Deputy Commissioner of Labour (Appeals) till it was dismissed will, therefore, have to be excluded for computing the period of limitation for filing the suit in question. If the entire period is excluded, the suit, it is not disputed, would be within time. 14. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1963 Act. The jurisdiction to entertain proceedings, appeals or revisions under the special laws is sometimes given to the ordinary Courts, and sometimes given to separate Tribunals constituted under the special law. Such Tribunals constituted under the special law which function as Courts or having trappings of Courts may be treated as Courts for the purposes of the 1963 Act but not all bodies or authorities hearing appeals or revisions under special law, having no trappings of the Court or which do not function as a Court. The Commissioner (Appeals) hears appeals against the order of the authority lower in rank than him and is empowered to decide whether the order was valid or not. He is required to follow principles of natural justice before deciding the lis. The order passed by him is binding on the parties. The Commissioner (Appeals) may not be a civil Court within the meaning of Civil Procedure Code but has trapping of a Court and would be a Court, within the meaning of Section 14 of the 1963 Act. 18. Learned Counsel for the respondent, inter alia, had referred to the judgments of various High Courts in Navinton Ltd. v. Union of India - 2006 (205) E.L.T. 71 (Bom.) = 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the revision petitions on merits holding to be within time. However, two references were made to the High Court for answering the questions. It was in these facts that the Supreme Court held the revisional jurisdiction under the UP Sales Tax Act barred the applicability of Sections 5 and 14 of the 1963 Act. It was held that the revisional authority under the UP Sales Tax Act was not a Court and, therefore, the provisions of Sections 5 and 14 of the 1963 Act were not applicable. 20. The provisions of special statute would be required to be scanned for concluding whether a body, authority or Tribunal empowered to hear appeals or revisions would satisfy the test of being a Court. The provisions of the 1962 Act being different in material and substance from UP Sales Tax Act, the judgment would not be of any benefit to the respondents. Subsequent three Judges Bench of the Supreme Court in M/s. Consolidated Engg. Enterprise s case (supra) had also distinguished the said pronouncement in M/s. Parson Tools and Plants case (supra) in the following terms :- 15. The plea that in view of the decision rendered by three Judge Bench of this Court in Commissioner of Sales Tax, Uttar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weighed with the Court in holding that Section 14 of the Limitation Act was not applicable, was that the Appellate Authority and Revisional Authority were not Courts . The stark features of the revisional powers pointed out by the Court, showed that the legislature had deliberately excluded the application of the principles underlying Sections 5 and 14 of the Limitation Act. Here in this case, the Court is not called upon to examine scope of revisional powers. The Court in this case is dealing with Section 34 of the Act which confers powers on the Court of the first instance to set aside an award rendered by an arbitrator, on specified grounds. It is not the case of the contractor that the forums before which the Government of India undertaking had initiated proceedings for setting aside the arbitral award are not Courts . In view of these glaring distinguishing features, this Court is of the opinion that the decision rendered in the case of Commissioner of Sales Tax, Uttar Pradesh, Lucknow (supra) did not decide the issue which falls for consideration of this Court and, therefore, the said decision cannot be construed to mean that the provisions of Section 14 of the Limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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