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TMI Blog2017 (11) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in Sub-Section (2) of Section 35C to condone the delay. The Tribunal also considered the question whether aid can be taken of Section 14 of the Limitation Act, 1963 (for short "Limitation Act'). The view taken by the Appellate Tribunal appears to be that if the legislature intended to confer power on the Appellate Tribunal to condone the delay in making an application under Sub-Section (2) of Section 35C, while amending Sub-Section (2) of Section 35C by Act No.20 of 2002, the legislature in its wisdom would have provided for a power to condone the delay. By Act No.20 of 2002, period of limitation of four years was brought down to six months. 2. The question which is canvassed by the learned counsel appearing for the petitioners is about the power of the Appellate Tribunal to invoke Section 14 of the Limitation Act. He has placed reliance on a decision of the Apex Court in the case of M.P. Steel Corporation Vs. Commissioner of Central Excise 2015 (319) E.L.T. 373 (S.C.). He submitted that the Apex Court has held that though by virtue of provisions of Section 29(2) of the Limitation Act, Section 14 per se will not apply, the principles governing Section 14 will certainly app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014, the Division Bench did not have benefit of the said decision of the Apex Court. The Appeal before the Apex Court arose out of the order of the Commissioner of Customs (Appeals) where the Appeal was dismissed as the same was preferred beyond period of 60 days plus 30 days provided in Section 128 of the Customs Act. The Appeal preferred against the said order was dismissed by the Central Excise and Service Tax Appellate Tribunal and therefore, an Appeal was filed by the Assessee before the Apex Court. In paragraph 4, a specific submission made by the learned counsel appearing for the appellant is noted by the Apex Court that in view of Sub-Section (2) of Section 29 of the Limitation Act even Section 14 of the Limitation Act would also apply to the Tribunals set up under the special and local Acts. The argument of the respondent before the Apex Court as noted in the decision is that Section 128 of the Customs Act excluded applicability of Section 14 of the Limitation Act inasmuch as the power to condone the delay in preferring an Appeal is limited to the period of 60 days. Another contention was that Section 14 of the Limitation Act applies only to the Courts as distinguished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case." (emphasis added) 5 In fact, the Apex Court, thereafter proceeded to discuss the issue as to which periods are to be excluded under Section 14. The Apex Court overruled its own decision in the case of C.S.T., U.P vs Madan Lal Das and Sons (1976) 4 SCC 464 which held that Section 12(2) of the Limitation Act will apply to the proceedings under the U.P. Sales Tax Act and distinguished the decision in the case of Parson Tools. The Apex Court noted the difference between the exclusion of certain period under Section 14 and the condonation of delay. Thus, the Apex Court held that though Section 14 may not in terms apply to the quasi-judicial Tribunals, the principle of Section 14 based on advancing the cause of justice would certainly apply to exclude time taken by the applicant in prosecuting proceedings which are bona fide and with due diligence. 5 As stated earlier, the decision of the Division Bench in the case of Flemingo Pvt. Ltd. is rendered before the decision of the Apex Court in the case of M.P. Steel. We have carefully perused the said dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph 21 of that decision for the correct invocation and application of Section 14 of the Limitation Act. These five conditions are by now well settled. Both the prior and subsequent proceedings must be civil proceedings prosecuted by same party; the prior proceeding should have been prosecuted with due diligence and in good faith; the failure of the prior proceeding must have been due to a jurisdictional defect or similar cause; both proceedings must relate to the same matter in issue; and both proceedings must be in a Court. In paragraph 7 of its decision in M.P. Steel Corporation, the Supreme Court in terms held that the period spent in pursuing a remedy before another appellate forum ought to be excluded. The Supreme Court also said that Section 14 must be liberally construed to advance the cause of justice. In paragraph 41 of its decision in M.P. Steel Corporation, the Supreme Court said that the plain language of Section 14, construed in light of its statutory purpose, lends itself to just such a liberal interpretation. The statutory object is to ensure that, subject to conditions being met, a plaintiff or applicant or appellant is put in the same position as he would have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay by providing that delay only upto the period of 60 days can be condoned, the time spent by the applicant in prosecuting wrong proceedings which are bona fide with due diligence can be excluded while computing the period of limitation. 10. In the circumstances, in the present case, the Appellate Tribunal ought to have considered the issue whether the petitioners can be given benefit of the principles analogous to Sub-Section (2) of Section 14. Therefore, in the facts of the case, the matter will have to be remitted to the Appellate Tribunal for reconsideration of the prayer made by the petitioners for exclusion of time under (2) of Section 14. However, the number of factual aspects will have to be gone into. 11 Accordingly, we pass the following order : ORDER (i) The impugned order dated 6th March, 2009 is hereby quashed and set aside. Application Nos.E/MA(COD)1992/ 2008 AND E/MA(ROM)1993/ 2008 in Appeal No. E/2671/1999 are restored to the file of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai; (ii) We direct the parties to appear before the Tribunal on 13th November, 2017 for fixing the schedule of hearing for considering the prayer o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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