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TMI BlogREMEDY PROSECUTED BEFORE A WRONG FORUMX X X X Extracts X X X X X X X X Extracts X X X X ..... REMEDY PROSECUTED BEFORE A WRONG FORUM - By: - Mr. M. GOVINDARAJAN - Central Excise - Dated:- 17-10-2015 - - The Limitation Act as well as the special enactments stipulate the period for not only for the original proceedings, but also for appeals and application. If the limitation is for presentation of original proceedings, the question of condonation of delay even for the best of the reasons, does not arise. However latitude is shown by the Parliament in respect of limitation for filing of appeals and other misc. proceedings. An appeal is treated as continuation of legal proceedings, provisions are made for condonation of delay in pursuing such remedies, subject to the satisfaction of the Appellate authority. It is to be kept in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind the distinction between the condonation of delay and exclusion of period spend in pursuing the remedy before a wrong forum. While condonation is invariably in respect of the proceedings which are not in original nature, exclusion of time taken in its fold the original proceedings as well as the appellate proceedings. The condonation of delay is in the discretion of the authority whereas the exclusion of time under Section 14 of the Limitation Act is the mandate under law without leaving any scope for subjectivity. In Choice Laboratories Limited V. Union of India 2011 (9) TMI 934 - GUJARAT HIGH COURT the Adjudicating Authority confirmed duty and imposed penalty on 29.03.2004 against which the petitioner filed appeal befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner (Appeals) who also dismissed the appeal. The Tribunal stayed the demand on pre deposit of ₹ 7 lakhs. On taking up the appeal the Tribunal held that the appeal before the Tribunal is not maintainable, on 02.02.2009 and directed the Registry to return the appeal papers to the petitioner for presentation before the appropriate forum. Since the Registry did not return the original papers the petitioner filed the Revision application before the government of India on 18.12.2009. He also filed an application for condonation of delay explaining the grounds for the delay. The Revision Authority dismissed the Revision Application only for the delay of 4 years and 9 months which was not properly explained and it had no power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condone such long delay. The High Court held that the petitioners were prosecuting before the wrong forum though under bona fide belief. The time spent in pursuing such remedy cannot be ignored while considering the limitation of delay caused in filing the revision application. The time spent in prosecuting remedy before a wrong forum under bona fide belief would fall under exclusive clause as per Section14 of Limitation Act . The High Court quashed the order of Government of India and directed the Revisional Authority to entertain the revision application of the petitioner on merits and dispose of the same in accordance with law. In Commissioner of Central Excise, Visakhapatnam II V. Carin Energy India PTY Limited 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 (11) TMI 451 - ANDHRA PRADESH HIGH COURT the respondent was served on order of the Original Authority, dated 23.03.2006, on 09.05.2006. He filed appeal before the Tribunal. On 28.09.2006 the Tribunal informed the respondent that the appellant to avail the remedy before the Commissioner (Appeals). The appeal was presented before Commissioner (Appeals) on 09.10.2006. The Commissioner (Appeals) computed the limitation from the date of furnishing the copy i.e., 09.05.2006 up to the date of presentation of appeal before him on 09.10.2006 and held that the appeal was barred by limitation. The Commission (Appeals) has not excluded the time spent in wrong forum. The High Court held that the applicability of Section 14 of the Limitation A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the proceedings was never in doubt. The record of this case clearly discloses that if the period during which the proceedings were pending before the Tribunal at the first instance the appeal would be within limitation when presented before the Commissioner (Appeals). In Shasun Pharma Limited V. Revision Authority, New Delhi 2015 (6) TMI 298 - MADRAS HIGH COURT the High Court held that under normal circumstances the order passed by the Commissioner are appealable before the Tribunal. The Tribunal did not refuse to entertain the appeal in this case but took the appeal on file, issued notice to the Department. It appears that the also did not point out before the Tribunal that appeal was not maintainable as against order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no steps were taken by the Department to challenge the order passed by the Tribunal in 2011 in which the Tribunal held that its jurisdiction is ousted and only a revision is maintainable before Government of India. The petitioner filed the revision application on 08.07.2011 along with delay condonation petition setting out the facts that they were bona fide ly prosecuting the matter before the wrong forum. The Revision Authority rejected the application as time barred. The High Court held that the order passed by the Tribunal was communicated to the petitioner on 24.03.2011. The petitioner filed the revision application on 08.07.2011 after a period of 3 months and 14 days from the date of receipt of the order. As per Section 35EE of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Act , revision could be filed within a period of 3 months and the condonable period is further 3 months. Therefore the delay involved in this case is only 14 days which may not be considered as inordinate delay. The Revenue authority could have been considered the petitioner s plea and entertained the revision and considered the claim on merits. The High Court allowed the petition and set aside the order of the Revision Authority and directed to consider and dispose the matter subject to the condition that the petitioner to deposit a sum of ₹ 2.5 lakh. In Gilco Exports Limited V. Union of India 2015 (7) TMI 752 - PUNJAB AND HARYANA HIGH COURT the High Court held that before dismissing the petition as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time barred the Revisional Authority was required to consider the applicability of Section 14 of the Limitation Act and consequently spent before the Tribunal. The High Court set aside the order and restored the same to Joint Secretary (Revision), Government of India for deciding the application for condonation of delay as well as the application in accordance with law. In Commissioner of Central Excise V. Raj Petroleum Products 2015 (5) TMI 449 - SUPREME COURT the Supreme Court observed that the appeal relating to the demand or duty on clandestine removal and availment of credit and levy of interest and penalty is not maintainable before the Supreme Court under Section 35L (b) of Central Excise Act, 1944 and it could h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been filed under Section 35G of the Act before the High Court. This objection was also raised by the respondent which is sustainable. The Supreme Court held that since the appeal was filed bona fide by the department which kept pending before the Supreme Court all these years the Supreme Court is of the opinion that if the appeal is filed within one month from that date by the Department the same shall be entertained by the High Court on merits and shall not be dismissed on the ground of limitation. In Commissioner of Customs Central Excise, Hyderabad I V. Sirpur Paper Mills Limited 2012 (1) TMI 172 - ANDHRA PRADESH HIGH COURT the Department filed appeal before the High Court on the question relating to rate of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or value of goods which is not maintainable before the High Court. Such appeal is to be filed before Supreme Court under Section 35L of the Central Excise Act, 1944 . The counsel for Revenue pursues the appeal despite time given to him by the High Court to seek instruction from the department in the matter. The High Court dismissed the appeal with cost of ₹ 5000/- to be paid to Andhra Pradesh State Legal Services Authority. In Riba Textiles Limited V. Commissioner of Central Excise, Rohtak 2011 (11) TMI 651 - CESTAT NEW DELHI the order-in-appeal was passed by the Commissioner (Appeals) on 25.09.2007 and received by them on 20.05.2008. They challenged the order by filing Revision application before the Revisional Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority on 28.06.2008. The Revision application was disposed on 17.1.2011 on the ground that the same is not maintainable and appeal is required to be filed before the Tribunal. The appeal was filed on 04.02.2011. The Tribunal held that the impugned was challenged before the wrong forum and the matter kept pending there till it was rejected as non maintainable, there was a genuine case for late presenting the appeal before the Tribunal. The Tribunal condoned the delay and allowed the condonation of delay application. - - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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