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TMI Blog2015 (9) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... ation has already been started. It ought to be kept in mind by this type of "chance taking petitioner" that they should simultaneously prefer statutory appeals also so that whenever there are such type of clauses that limitation cannot be condoned beyond the period of thirty days the appeal may not be dismissed for want of condonation of delay. The petitioner is lethargic, but, certainly not an ignorant person and is knowing all fine niceties of law. Vigilant petitioner should have file their appeal within the limitation period or at least within condonable delay period. - Decision in the case of Flemingo (Duty Free Shop) Pvt. Ltd. [2015 (1) TMI 22 - BOMBAY HIGH COURT] followed - Decided against the assessee. - W. P. (T) No. 6643 of 2014 - - - Dated:- 8-7-2015 - D. N. Patel And Ratnaker Bhengra, JJ. For the Petitioner : M/s Rahul Kumar and V K Gupta, Advs. For the Respondent : M/s Deepak Roshan and Tapash Kabiraj, Advs. JUDGMENT Per D. N. Patel, J. 1. Instant writ petition has been preferred against the order dated 17th October, 2014 passed by the Commissioner (Appeals) in Appeal Nos. 107 to 114/RAN/2014 whereby, the appeals preferred by the appellants, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of Union of India that it has specifically been mentioned in the order in original passed by Additional Commissioner Central Excise, Ranchi dated 31st January, 2013 that demand of service tax has been affirmed against this petitioner as well as interest under section 75 of the Finance Act, 1994 has also been affirmed. There was violation of certain circulars and rules of the Finance Act, 1994. Penalty was also affirmed under Section 77 of the Finance Act, 1994. Thus, there was no ambiguity at all. So far as liability of this petitioner is concerned in the order in original passed by Additional Commissioner, Central Excise, Ranchi this petitioner could have prefer appeal within 60 days+30 days maximum otherwise, if the appeal is preferred beyond ninety days the delay is not condonable in view of the decision rendered by Hon'ble Supreme Court reported in [2008] 3 SCC 70 Singh Enterprises Versus Commissioner of Central Excise Jamshedpur and others. Counsel for the respondents has also relied upon decisions rendered by Hon'ble Bombay High Court in writ petition No. 1830 of 2013 with writ petition (Civil) no. 3419 of 2014 decided on 24th December, 2014. It is further su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ], may appeal to the Commissioner of Central Excise (Appeals)] (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of [such adjudicating authority], relating to service tax, interest or penalty under this Chapter [made before the date on which the Finance Bill, 2012 receives the assent of the President]: Provided that the [Commissioner} of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. [(3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals). (1) any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereinafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 7. It is to be noted that the periods sixty days and thirty days have been substituted for within three months and three months by Act 14 of 2001, with effect from 11-5-2001. 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess there was delay does not stand to reason. ITC case was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs. (iii) Looking to Section 14 of the Limitation Act 1963 the said Section is also not applicable in the facts of the present case because the writ petition (Tax) No. 7713 of 2013 was preferred by this petitioner before this Court on 17th December, 2013 which was dismissed vide order dated 25th March, 2014. Thus, writ petition which was also preferred after the limitation period was over for preferring appeal U/s 85(3A) of the Finance Act, 1994. (iv) Looking to the order in original dated 31st December, December, 2012 passed by Additional Commissioner, Central Excise the demand notice issued upon this petitioner was affirmed, witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. As stated herein above, writ petition was preferred on 17th December, 2013 whereas order in original is dated 31st January, 2013. Therefore, the benefit of section 14 of the Limitation Act cannot be extended to this petitioner. (vii) There is one more reason not to give benefit of Section 14 of the Limitation Act, 1963 to this petitioner as because Section 14 of the Limitation Act, 1963 is applicable only when the proceeding is bonafide in the court without jurisdiction. The provision of Section 14 has been enacted only for the reason when there is total lack of jurisdiction the benefit can be given to the party who is preferring appeal at the slightly belated stage. (viii) Looking to the decision rendered by Hon'ble Bombay High Court in the writ petition no. 1830 of 2013 with Writ Petition (Civil) No. 3419 of 2014 the judgment and order dated 24th December, 2014, Para 30, 33 and 44 reads as under: 30) We have already held that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions therein. 44) Thus, the Hon'ble Supreme Court held in the case of Mohinder Singh (supra) that once limitation starts running, till its running is stopped by an order of the competent Civil Court or competent Authority, it cannot stop. It overruled the earlier Judgment in the case of P.K. Kutty Anuja Raja and Anr. Vs. State of Kerala and Anr. reported in AIR 1996 SC 2212 only because no argument was advanced as regards the applicability of doctrine of merger. The Hon'ble Supreme Court entertained the SLP and granted leave to Appeal as also stay. The time spent in prosecuting the proceedings before the Hon'ble Supreme Court and which is bonafide was permitted to be excluded. Pertinently, the test laid down is applicable in a case where a Appeal is filed that being a continuation of the lis, its pendency can be relied upon the claim the benefit. A Writ Petition's pendency will not stand on the same footing always. If the time has not stopped running, then, none of the principles relied upon by the Petitioner will assist it. As we have noted above, in this case, Writ Petition was pending in this Court, but neither it was entertained nor any interim relief was gra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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