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TMI Blog2017 (3) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... not received the appeal or if same would have been forwarded to Commissioner of Customs (A) New Customs House, New Delhi - the appeal cannot be dismissed by the Ld. Commissioner (A) New Customs House New Delhi, merely on the ground that the appeal has not been filed in time - the provision of section 14 of the limitation act are applicable to the facts of this case. Therefore, the period between 15.03.2012 to 18.07.2013 is required to be excluded - appeal restored - matter is remanded back to the Ld. Commissioner (A) to decide the issue on merits - decided in favor of appellants. - C/54491/2014-CU (DB) - C/A/51922/2017-CU(DB) - Dated:- 20-2-2017 - Hon'ble Shri Ashok Jindal, Member (Judicial) And Hon ble Shri V. Padmanabhan, Member (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposes the contention of the Ld. Counsel and submits that as mentioned in the preamble of the adjudication of order, it is clearly mentioned that appeal is to be filed before Commissioner (A), New Customs House, New Delhi. Therefore, filing appeal before Commissioner (A) ICD TKD is not correct. As the appellant has not filed the appeal in time, therefore, the delay cannot be condoned in the light of the following judicial pronouncements namely Raj Chemicals Vs. UOI 2013 (287) ELT 145 (Bom.), Resolute Electronics Pvt. Ltd. Vs. UOI 2015 (319) ELT 51 (A.P.), Uttam Sucrotech International (P) Ltd. Vs. UOI 2011 (264) ELT 502 (Del.) and Esha Bhattacharjee Vs. Managing Committee of Raghunathpur vide civil appeal nos. 8183-8184/2013. 4. Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that situation, we hold that the appeal cannot be dismissed by the Ld. Commissioner (A) New Customs House New Delhi, merely on the ground that the appeal has not been filed in time in the light of the decision of the Hon ble High Court of Punjab and Haryana in the case of Sonia Overseas Pvt. Ltd. Vs. UOI 2015 (316) ELT 578 (P H), in the said case the Hon ble High Court has observed that there should be exclusion of time of filing the appeal before the Commissioner Customs (A) New Customs House New Delhi is to be excluded in terms of the section 14 of the Limitation Act 1963. 10. For better appreciation the provision of section 14 of Limitation Act 1963 are reproduced here as under: 14 Exclusion of time of proceeding bona fide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. 11. It is not disputed that the appellant has filed the appeal before the Commissioner of Customs (A) ICD TKD within time. But that was not the proper office to file the appeal, therefore, intervening period the presentation of appeal before the Commissioner of (Appeals) New Customs House, New Delhi is required to be excluded as per provision of section 14 of the Limitation Act 1963 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extension of time under Section 5 is discretionary whereas under Section 14, exclusion of time is mandatory, if the requisite conditions are satisfied. Section 5 is broader in its sweep, than Section 14 in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal or the application within time. The ingredients in respect of Sections 5 and 14 are different. The effect of Section 14 is that in order to ascertain what is the date of expiration of the prescribed period‟, the days spent in prosecuting the prior proceedings before wrong forum with due diligence, have to be added to what is primarily the period of limitation prescribed. There being di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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