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TMI Blog2017 (10) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court was excluded then the appeal filed before the Commissioner (Appeals) was within the time. The appellant has filed the appeal before the Ld. Commissioner (A) within 26 days after the disposal of their writ petition by the Hon’ble High court of Punjab and Haryana - the appellant has filed the appeal before the Ld. Commissioner (A) within time - the matter is remanded back to the Ld. Commissioner (A) to decide the issue on merits - appeal allowed by way of remand. - ST/60601/2017 - A/61935/2017-SM[BR] - Dated:- 22-9-2017 - Mr. Ashok Jindal, Member (Judicial) Shri. Surjeet Bhadu, Shri. Veer Singh, Advocates- for the appellant Shri. Tarun Kumar, AR- for the respondent ORDER Per Ashok Jindal The appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal within 60 days of the receipt of the adjudication order and the same can be extended further 30 days on explaining satisfactory reasons for causing delay. Aggrieved from the said order, the appellant is before me. 3. Heard the parties and considered the submissions. 4. In this case the facts and events are not in dispute, therefore, the same are not discussed here. Further, I find that the Hon ble Punjab and Haryana High Court have disposed off the writ petition filed by the appellant on 19.02.2015 and thereafter within 26 days, the appellant filed the appeal before the ld. Commissioner (A). In that circumstances, provisions of Section 35 of the Central Excise Act, 1944 are to be read in a manner with the limitation for filing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at remedy, the writ petition could not be maintained and vide order dated 13-8-1976, the petition was dismissed. Thereafter, appellant filed SLP before the Hon ble Apex Court against the order and the same was also dismissed on 26-10-1976 on the ground that the appellant shall exhaust their remedy of appeal before the appellate Collector. Thereafter the appellants filed an appeal before the Appellate Collector of Customs against the order on 16-2-1976, which was received according to the appellant on 18-2-1976. This appeal was dismissed on the ground that under Section 128 of the Customs Act, an appeal could have been preferred within three months from the date of communication to the appellants of the decision or order appealed against and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court. After the disposal when the appellants filed the appeal before the Appellate Authority that appeal is now dismissed as not filed in time and the net result is the appellants did not have any decision on merits by the Appellate Authority. We are also satisfied and in fact it was not in dispute that the appellants were prosecuting diligently and bona fide the proceedings in this Court and the Supreme Court. If we now, therefore, dismiss it again holding that the Appellate Authority in not exercising its power was not liable to be interfered with, then the appellants would go without a decision on merits. It is in those circumstances the learned counsel at one stage also contended that if for any reason, we are of the view that Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judge and that of the second respondent, dated March 22, 1977, and the third respondent, dated December 21, 1978, directing the second respondent to take the appeal on file and to dispose of the same on merits. However, there will be no order as to costs. 5.2 We have also examined the case law relied upon by the learned AR. The cases relied upon by the learned AR, the Hon ble High Court of Delhi in the case of Delta Impex (supra) dealt with Section 5 of the Limitation Act, 1963, which is not applicable to the appeal under the Customs Act before the Commissioner (Appeals) as extension of time of 30 days has already been given for condoning the delay subject to satisfaction and not beyond that. Further, in the case of IVP Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers (supra) are applicable to the facts of the case in hand. Accordingly, we hold that the time taken by the appellant in litigation before the Hon ble Bombay High Court is to be excluded for calculating the time for filing the appeal before the Commissioner (Appeals). If the time taken by the appellant in litigation before the Hon ble Bombay High Court is excluded then the appeal filed before the Commissioner (Appeals) is within the time. 6. In view of the above observations, we set aside the impugned order and remand the matter back to the Commissioner (Appeals) to consider the issue involved in the matter on merit and thereafter pass an appropriate order after giving a reasonable opportunity to the appellant to present their case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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