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TMI Blog2015 (9) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... a For the Respondent : Mr Ratnesh Kumar JUDGMENT Per D. N. Patel, J. 1) Instant writ petition has been preferred against the order dated 16th October, 2014 passed by Commissioner (Appeals) in Appeal Nos. 107 to 114 / RAN / 2014 whereby the appeals preferred by the appellants, including this petitioner, have been dismissed mainly on the ground that these appeals have been preferred beyond the period of condonable delay. 2) Counsel for the petitioner submitted that petitioner has filed a writ petition (T) No. 7713 of 2013 on 17th December, 2013 before this Court against the order in original dated 31st December,2012 passed by Additional Commissioner of Central Excise, Ranchi which was dismissed on 25th March, 2014. Previously another party had preferred a writ petition in which intervention application was preferred by this petitioner in writ petition (T) no. 1263 of 2013 along with other writ petitioners. These batch of writ petitions were disposed of by this Court vide order dated 3rd September, 2013 and, therefore, appeals were preferred against the order in original passed by Additional Commissioner, Central Excise, Ranchi by the petitioners claiming benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submitted by learned counsel for the respondent-Union of India that though order in original was passed on 31st December, 2012 which clearly affirms the demand notice issued upon this petitioner including interest and penalty, this petitioner preferred a writ petition before this Court being W.P.(T) No.7713 of 2013 on 17th December, 2013 which was dismissed vide order dated 25th March, 2014. Thus, no benefit of Section 14(2) of the Limitation Act, 1963 can be given to this petitioner. As such, no error has been committed by the Commissioner (Appeals) in not condoning the delay. Even otherwise also, as submitted by the counsel for the respondent-Union of India that prima-facie Section 14 of the Limitation Act 1963 is not applicable because there was no want of jurisdiction where the writ petition was preferred. Normally, the assesses are taking a chance by filing a matter directly in the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 aforesaid period of two months, allow it to be presented within a further period of one month]. (4) The [Commissioner] of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty: Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the [Commissioner] of Central Excise (appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the [Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act , 1963(in short the Limitation Act ) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to sub section (1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cember, 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, 2012 passed by Additional Commissioner, Central Excise the demand notice issued upon this petitioner was affirmed, without any ambiguity. Order for interest was also passed and order for penalty was also imposed Under Section 77 of the Finance Act, 1994. Thus appeal should have been preferred by this petitioner as provided in the Finance Act, 1994. (v) There is tendency of those persons who are liable to make payment of the tax+interest+ penalty to take a chance before this Court. This chance taking petitioner has filed a writ petition before this Court at his own peril and risk because some times it takes time for final adjudication of the writ and on another hand the period of limitation 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 limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (vii) 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 by sub-section (2) of section 29 of the Limitation Act, 1963 and applying it to the facts of the present case, sections 4 to 24 (inclusive) of the Limitation Act, 1963 have limited application to the proceedings and particularly Appeals under section 128 of the Customs Act, 1962. The third assumption on which we proceed is that subsection (2) of section 14 of the Limitation Act, 1963 applies to Appeals as well. We are not impressed by Mr. Dhond's placing reliance on the judgment of the Hon'ble Supreme Court in the case of Ketan Parekh vs. Special Director, Directorate of Enforcement and Anr. reported in (2011) 15 SCC 30. We have perused this judgment very carefully and minutely. 33) We are unable to agree with Mr. Dhond that this judgment would ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 granted, leave alone admitting it. If the Petitioner decides not to approach the appropriate, correct or right Forum, but tries to bypass it by filing a Writ Petition and allows the time to run, them it cannot request this Court in its discretionary and equitable jurisdiction to set right a wrong, for which it is itself responsible. In other words, the Petitioner is trying to take advantage of its own wrong committed earlier in approaching this Court, though knowing fully well that it had refused to exercise jurisdiction, because the alternate efficacious remedy of Appeal to the Commissioner of Customs was provided by law. The Petitioner did not take steps to file such an Appeal even during the pendency of the Writ Petition and allowed the time to run. In these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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