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TMI Blog2015 (10) TMI 2415X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation period was over for preferring appeal U/s 85(3A) and is applicable only when the proceeding is bonafide in court without jurisdiction – Appeal dismissed – Decided in favour of Revenue. - W. P. (T) No. 201 of 2015 - - - Dated:- 25-8-2015 - D. N. Patel And Ratnaker Bhengra, JJ. For the Petitioner : M/s Sarvesh Kumar For the Respondent : M/s Deepak Roshan JUDGMENT Per D. N. Patel, J. 1. Instant writ petition has been preferred against the order dated 17th October, 2014 passed by Commissioner (Appeals), Central Excise and Service Tax 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 W.P. (T) No. 7713 of 2013 on 17th December,2013 before this Court against the order in original dated 31st December,2012 passed by the 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 preferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 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, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner] 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 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 of penalty shall not be made unless the person affected thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs. (Emphasis supplied) (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, 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 sub-section (2) of Section 14 of the Limitation Act, 1963 applies to Appeals as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument 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 ciontinuation of the lis, its pendency can be relied upon the claim the benefit. A Writ Petitioner'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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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