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TMI Blog2024 (6) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... o be done within six months from the date of notice as contemplated under sub-section (9) of section 28 of the Customs Act. In the present case, the notice under sub-section (1) of section 28 of the Customs Act was issued to the appellant on 26.09.2018, but it is only on 24.05.2021 that the Principal Commissioner determined the amount of duty under sub-section (8) of section 28 of the Customs Act. According to the department, though the time limit of six months for such determination may have expired on 25.03.2019 but in view of the provisions of the Relaxation Act and the orders passed by the Supreme Court in suo-moto proceedings relating to Covid Pandemic, the period stood extended, and the Chief Commissioner in terms of the proviso to sub-section (9) of section 28 also gave extension upto 30.06.2021. Thus, according to the department, the Commissioner determined the amount of duty within the time stipulated. According to the appellant, the provisions of the Relaxation Act or the directions contained in the orders passed by the Supreme Court in suo-moto proceedings do not come to the aid of the department and so the order deserves to be set aside for this reason alone. The adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant for the reason that the matter that was earlier pursued by the appellant before the department related to refund of Additional Duty and not re-assessment of Bills of Entry, which relief had been claimed in the appeals filed before the Commissioner (Appeals), and even if it is assumed that the appellant was pursuing the same matter, the refund applications were filed before the correct authority and there was no defect in jurisdiction. The Commissioner (Appeals) also held that the appellant was required to challenge the self-assessment before claiming refund and so the filing of the refund applications instead of challenging the assessment was not in good faith and was out of commercial consideration to reap the benefits arising out of the decision of the Supreme Court in SRF. Whether section 14 of the Limitation Act can be applied to proceedings under section 128 of the Customs Act? - HELD THAT:- This aspect was examined at length by the Supreme Court in M.P. Steel Corporation vs. Commissioner of Central Excise [2015 (4) TMI 849 - SUPREME COURT]. The Supreme Court held that though on a plain reading of the provisions of the Limitation Act it would be clear that suits, ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re given out of charge from 07.09.2014 to 17.07.2015. Even if the last of this date i.e. 17.07.2015 is taken into consideration, the refund applications were filed only on 25.09.2015. The appellant could have filed an appeal before the Commissioner (Appeals) within 60 days as provided under section 128(1) of the Customs Act. Thus, the appeal could have been filed within 60 days from 17.07.2015 i.e. upto 16.09.2015 and a delay of 30 days only after the expiry of the said period of 60 days could be condoned. The decision of the Supreme Court in Singh Enterprises [2007 (12) TMI 11 - SUPREME COURT] emphasises that the language of the proviso to section 35(1) of the Central Excise Act, 1944 makes it clear that the Appellate Authority has no power to allow the appeal to be presented beyond the period of thirty days after the normal period of limitation of sixty days. In such circumstances, the Supreme Court held that there is complete exclusion of section 5 of the Limitation Act. Conclusion - Even though the benefit of section 14 of the Limitation Act for exclusion of time period from 25.09.2015 upto 18.09.2019 would be available to the appellant, but still the 31 appeals would have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional Duty, it should not have taken credit under rule 3 or rule 13 of the CENVAT Credit Rules 2004 [CENVAT Rules] in respect of the inputs or capital goods used in the manufacturer of these goods. 4. The Supreme Court, in the context of import of Nylon Filament Yarn of 210 deniers, examined a similar condition no. 20 in SRF Ltd. vs. Commissioner of Customs, Chennai [2015 (318) ELT 607 (SC)]. SRF had claimed nil rate of Additional Duty by relying upon a notification dated 01.03.2002. The Deputy Commissioner of Customs held that SRF would not be entitled to exemption from payment of Additional Duty since it did not fulfil condition no. 20 of the said notification, which is to the effect that the importer should not have availed credit under rule 3 or rule 11 of the CENVAT Rules in respect of the capital goods used for the manufacture of these goods. The admitted position was that such CENVAT Credit was not availed by SRF. The Tribunal held that when the credit under CENVAT Rules was not admissible, the question of fulfilling the aforesaid condition did not arise and, therefore, as condition no. 20 was not satisfied SRF could not claim nil rate of Additional Duty. This reasoni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the refund application was rejected without reference to these materials on the short ground that the department was contemplating an appeal by way of special leave in regard to an order in Micromax Informatics Ltd. v. Union of India 2016 (335) ELT 446 (Del). The other ground was that review of the law declared by the Supreme Court in M/s. SRF Industries Ltd. v. CC, Chennai 2015 (318) ELT 607 (SC) was sought. The Supreme Court in SRF (supra) had clarified that to quantify CVD in the importer's case, the presumption that such goods were manufactured in India and excise duty leviable on it would have to be drawn and then an ascertainment would be essential to determine the extent of CVD to which the importer would be entitled. It was on the basis of this principle that the refund claims were to be processed. This Court notices from the record that the concerned adjudication officer, who rejected the petitioner's claim for refund has adopted the same approach that she did which became the subject matter of scrutiny in several previous orders commencing from Micromax (supra). We notice that the Micromax (supra) was revisited in Yu Televentures v. Union of India [W.P.(C) 6750/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble High Court:- The refund claim has been pre-audited by the Assistant Commissioner (Audit) vide C.No.VIII(I)20/R/1399/2015 dated 26.09.2016. ORDER Without prejudice, I sanction the refund claim for Rs. 2,36,92,607/- (Two Crore Thirty-Six Lacs Ninety-Two Thousand Six Hundred and Seven only) along with interest of Rs. 3,42,731/- (w.e.f 30-06-2016 to 26-09-2016 @ 6% per annum) to M/s Vishal Video & Appliances Pvt. Ltd., 1/6 Gokhle Marg, Opp. Red Hill School, Lucknow-226001, as per directions of Hon'ble High Court, payable through RTGS." 8. A similar order in respect of 17 Bills of Entry covering the refund of Rs. 2,17,62,591/- was passed by the Deputy Commissioner on the same date i.e. 27.09.2016. 9. The Department filed Special Leave Petition No. 2865 of 2017 before the Supreme Court on 03.01.2017 against the aforesaid judgment of the Delhi High Court. This Special Leave Petition was decided by the Supreme Court on 18.09.2019 in bunch matters in ITC Ltd. vs. Commissioner of Central Excise, Kolkata-IV [2019 (368) ELT 216 (SC)]. The issue involved in all the Civil Appeals was whether, in the absence of any challenge to the order of assessment in appeal, a refund application a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court held that in such a case signing the Bills of Entry itself amounted to passing an order of assessment and, therefore, an application seeking refund on the ground that the imported goods fell under a different tariff item attracting lower rate of duty, should be filed within six months after the payment of duty. The Supreme Court, therefore, held that the signature made in the Bills of Entry was an order of assessment of the assessing officer. 11. The Supreme Court, thereafter, in ITC observed that the provisions relating to refund were more or less in the nature of execution proceedings and it would not be open to an authority, while processing a refund application, to make a fresh assessment on merits. The relevant portions of the judgment of the Supreme Court in ITC are reproduced below: "44. The provisions under section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under section 28 of the Customs Act with applicable rate of interest under section 28AA of the Customs Act. It was alleged that the refund claim had been sanctioned on the basis of the judgment of the Delhi High Court, but the Department had preferred Special Leave Petition No. 6269 of 2017 before the Supreme Court which was pending, though no stay had been granted. It was further stated that the show cause notices were being issued in order to cover the period of limitation and the adjudication of the demand notices would be subjected to the outcome of the decision of the Supreme Court. 13. The appellant filed a reply to the two show cause notices and denied the allegations made therein. 14. After the decision of the Supreme Court in ITC on 18.09.2019, the Principal Commissioner adjudicated the two show cause notices by a common order dated 24.05.2021 and confirmed the demand proposed in the two show cause notices with interest. This common order dated 24.05.2021 has been assailed by the appellant in Customs Appeal No. 50091 of 2022 and Customs Appeal No. 50286 of 2022. 15. The appellant had also, pursuant to the decision of the Supreme Court in ITC on 18.09.2019, filed 31 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 9 of the Act fall in the month of March 2020, by all reasons from 20th March 2020 onwards. Further Section 130F of the Customs Act provides that where the judgment of the High Court is reversed or varied by the Supreme court in appeal, effect shall be given to the order passed on the appeal by the proper officer on the basis of a certified copy of the judgment. Further in the wake of pandemic situation arising out of spread of COVID 19, the President of India promulgated the Taxation and other laws (relaxation of certain provisions) Ordinance, 2020 dated 31.03.2020*****. 5.5.4 In accordance with the above Ordinance, the normal time limit for adjudication of the impugned show cause notices as per Section 28(9)(a) which was expiring in March 2020 got extended to 31 December 2020. Further proviso to Section 28(9)(a) stipulates that where the proper officer fails to so determine within the specified period, an officer senior in rank to the proper officer may having regard to circumstances under which the proper officer was prevented from determining the amount of duty may extend the period specified in clause (a) to a further period of six months. In accordance with the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustainable in the eyes of law. Any benefit that has accrued on the basis of the said order of Hon'ble High Court has to be deposited back/recovered*****. 5.7.2 The Court has clearly held that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of section 27 to set aside the order of self-assessment and reassess the duty for making refund the provisions under Section 27 of the Act. The Court held that the order passed by the High Court of Delhi to the contrary, deserves to be and are set aside. In the light of above, I hold that the amount of refund sanctioned to the noticee in the light of the order of Hon'ble High Court was erroneous and hence liable to be recovered from them along with interest from the date it was refunded. The judgments cited by the noticee against charging interest are related to such circumstances where demands were not confirmed which is not the case here." (emphasis supplied) 18. It is seen that the contention of the appellant that the two orders dated 24.05.2021 should be set aside for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the department. The sanctioned refund, therefore, cannot fall in the category of 'erroneous refund' within the meaning of section 28 of the Customs Act; (v) There was no 'erroneously granted refund' on the date of issuance of the show cause notice and hence the same could not have been issued. In this connection, reference has been made to the judgment of the Tripura High Court in Tripura Ispat (A unit of Lohia Group) vs. Union of India and others [2021 (1) TMI 753 - Tripura High Court] and the judgment of the Bombay High Court in M/s United Spirits Limited vs. State of Maharashtra [2022 (5) 73 - Bombay High Court]; (vi) The refund was sanctioned to the appellant in view of the judgment of the Supreme Court in SRF and under the directions of the Delhi High Court by order dated 05.09.2016. On the day of issuance of the show cause notice, Special Leave Petition against the order of the High Court was pending before the Supreme Court in batch matters tagged with ITC. and there was no stay order with respect to the order of the High Court order. Therefore, the refund granted to the appellant cannot be considered as 'erroneously granted' on the date of issuance of show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant date, serve notice on the person chargeable with the duty or interest which has not been so levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice;" 25. Sub-section (8) of section 28 of the Customs Act provides that: "(8) The proper officer shall, after allowing the concerned person an opportunity of being heard and after considering the representation, if any, made by such person, determine the amount of duty or interest due from such person not being in excess of the amount specified in the notice." 26. Sub-section (9) of section 28 of the Customs Act provides that: "(9) The proper officer shall determine the amount of duty or interest under sub-section (8), - (a) within six months from the date of notice, in respect of cases filling under clause (a) of sub-section (1); (b) within one year from the date of notice, in respect of cases filling under sub-section (4). Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 24.05.2021 that the Principal Commissioner determined the amount of duty under sub-section (8) of section 28 of the Customs Act. According to the department, though the time limit of six months for such determination may have expired on 25.03.2019 but in view of the provisions of the Relaxation Act and the orders passed by the Supreme Court in suo-moto proceedings relating to Covid Pandemic, the period stood extended, and the Chief Commissioner in terms of the proviso to sub-section (9) of section 28 also gave extension upto 30.06.2021. Thus, according to the department, the Commissioner determined the amount of duty within the time stipulated. According to the appellant, the provisions of the Relaxation Act or the directions contained in the orders passed by the Supreme Court in suo-moto proceedings do not come to the aid of the department and so the order deserves to be set aside for this reason alone. 30. To examine this contention, it is necessary to consider the relevant dates, which are indicated in the following chart: Date Particulars 26.09.2018 Show cause notices were issued to the appellant seeking recovery of 'erroneously refunded' amount under section 28(1). Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act, 1994, as it stood prior to its omission vide section 173 of the Central Goods and Services Tax Act, 2017 with effect from the 1st day of July, 2017, the time limit specified in, or prescribed or notified under, the said Acts which falls during the period from the 20th day of March, 2020 to the 29th day of September, 2020 or such other date after the 29th day of September, 2020 as the Central Government may, by notification, specify, for the completion or compliance of such action as-- (a) completion of any proceeding or issuance of any order, notice, intimation, notification or sanction or approval, by whatever name called, by any authority, commission, tribunal, by whatever name called; or (b) filing of any appeal, reply or application or furnishing of any report, document, return or statement, by whatever name called, shall, notwithstanding that completion or compliance of such action has not been made within such time, stand extended to the 30th day of September, 2020 or such other date after 30th day of September, 2020 as the Central Government may, by notification, specify in this behalf" (emphasis supplied) 33. A perusal of the aforesaid section 6 sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities." 38. This order is in the context of the difficulties faced by the litigants in filing petition/application/suits/appeals/all other proceedings and, therefore, would not come to the aid of the department. 39. However, the subsequent order dated 08.03.2021 passed by the Supreme Court does provide that the period from 15.03.2020 till 14.03.2021 shall stand excluded in computing the periods prescribed under the Arbitration Act, Commercial Courts Act, the Negotiable Instruments Act and any other laws, which prescribe periods of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod shall apply. 3. The period from 15.03.2020 till 14.03.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. ***** 3. The Suo Motu Writ Petition is disposed of accordingly." (emphasis supplied) 40. Though, the Supreme Court in the aforesaid order dated 08.03.2021 noticed that the order dated 23.03.2020 had served its purpose in view of the changing scenario relating to the pandemic and the extension of limitation should come to an end, but by the subsequent order dated 27.04.2021 the Supreme Court noticed that there was a second outburst of Covid-19 virus and, therefore, restored the order dated 20.03.2020, and in continuation of the order dated 08.03.2021 passed the following order dated 27.04.2021: "Supreme Court Advocate on Record Association (SCAORA) has now through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt or tribunal can condone delay) and termination of proceedings. In view of the aforesaid order of the Supreme Court the period from 15.03.2020 till 02.10.2021 shall stand excluded in computing the period prescribed under section 28(9) of the Customs Act. The order dated 23.09.2021 passed by the Supreme Court is reproduced below: "6. The order dated 23.03.2020 was passed in view of the extraordinary health crisis. On 08.03.2021, the order dated 23.03.2020 was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, it was made clear that the period of limitation would start from 15.03.2021. As the said order dated 08.03.2021 was only a one-time measure, in view of the pandemic, we are not inclined to modify the conditions contained in the order dated 08.03.2021. 7. The learned Attorney General for India stated that paragraph No.4 of the order dated 08.03.2021 should be continued as there are certain containment zones in some States even today. 8. Therefore, we dispose of the M.A. No.665 of 2021 with the following directions:- I. In computing the period of limitation for any suit, appeal, application or proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations on the basis of the judgment of the Supreme Court in SRF. The two refund applications were rejected by orders dated 30.06.2016 passed by the Deputy Commissioner (Refund) specifically observing that the assessment can be modified only by filing an appeal before the Appellate Authority and unless and until the assessment order is modified by the competent authority, refund cannot be granted. The Deputy Commissioner also noticed that the appellant had not challenged the assessment orders. The orders passed by the Deputy Commissioner were challenged by the appellant before the Delhi High Court in a Writ Petition which was allowed on 05.09.2016 and a direction was issued to the Deputy Commissioner (Refund) to pay the amount. It is as a consequence of the aforesaid directions of the Delhi High Court that the Deputy Commissioner sanctioned the refund amount by orders dated 27.09.2016. In the said orders, the Deputy Commissioner made it clear that the refund was being granted only because of the directions issued by the Delhi High Court. The Department filed a Special Leave Petition to challenge the order of the Delhi High Court. Thereafter, two show cause notices, each dated 26.09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Limited vs. Commissioner of Central Excise, Guwahati [(2018) 1 SCC 105]. The refund was granted to the appellant. The Supreme Court thereafter reversed the aforesaid decision in SRD Nutrients in M/s. Unicorn Industries vs. Union of India and others [(2020) 3 SCC 492]. Based on this decision of the Supreme Court, the Assistant Commissioner issued show cause notices for recovery of the erroneously granted refund. It is in this context that the Tripura High Court observed that if the department was aggrieved by the refund order passed by the Assistant Commissioner, it was open to the department to file an appeal against such order. 51. In the present case, the refund was sanctioned because of the specific directions issued by the Delhi High Court in the Writ Petition filed by the appellant and the refund order specifically stated that it was because of the directions of the Delhi High Court that the refund was being sanctioned. The order of the Delhi High Court was assailed by the department before the Supreme Court. The show cause notice issued to the appellant under section 28(1) of the Customs Act clearly mentions that the adjudication would be dependent on the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r otherwise." 54. It is for this reason that it was also held by this Division Bench of the Tribunal in M/s. Vivo Mobile India Pvt. Ltd. vs. Principal Commissioner of Customs [Customs Appeal No. 50782 of 2021 decided on 09.02.2024 (Del.)] that both ITC and Flock (India) make it explicit that the assessments can be modified either thorough an appeal to the Commissioner (Appeals) or under section 28 of the Customs Act. The relevant portion of the decision of the Tribunal in Vivo Mobile is reproduced below: "42. Thus, the power under section 28 is the power to review the assessment by the proper officer himself and modify it. Such power is not inherently available to any judicial or quasi-judicial authority as once the authority passes any order, he becomes functus officio. But where such power is conferred on an authority by law, he can exercise it. All the four judgments of the Supreme Court in Flock India, ITC Ltd, Sayed Ali [2011 (265) ELT 17 (SC)] and Canon India make it more than explicit the nature of the power under section 28 and that an assessment can be modified by resorting to section 28 or on an appeal." 55. The appellant is, therefore, not justified in asserting that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the ruling of Hon'ble SC in the case of the case of M/s SRF Ltd. [2015 (318) E.L.T. 607 (S.C.)]. However, the Appellant had been pursuing with the Department and the High Court their request for refund of duty based on SRF case [2015 (318) E.L.T. 607 (S.C.)]. In their refund application which were rejected vide orders dated 30.06.2016 and which were matter of dispute before Hon'ble High Court in WP (C) No. 7851/2016 and before the Hon'ble Supreme Court in SLP (C) No. 6269 of 2017, the Appellant had not sought reassessment of bills of entry. Thus, the matter being pursued by the Appellant was of "refund of duty". This is entirely different from the issue now raised in appeal before me. Thus, the Appellant fails in the first requirement of Sec 14 of the limitation Act, 1963. 5.6. Even assuming (not admitting) that the matter being pursued till date of ITC judgment was same as the being pursued in the present appeal, it needs to be seen whether the matter was being prosecuted in good faith in wrong forum which from defect of jurisdiction or other cause of a like nature could not entertain it. Though refund application is entirely different from challenge to self assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, and the said section is reproduced below: "14. Exclusion of time of proceeding bona fide in court without jurisdiction. - (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." 59. Learned counsel for the appellant submitted that the requirements of section 14 of the Limitation Act were satisfied by the appellant and, therefore, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITC judgment was delivered on 18.09.2019 has to be excluded for the purpose of computation of the period of limitation for filing an appeal under section 128 of the Customs Act. 63. Learned authorized representative appearing for the department, however, supported the impugned order passed by the Commissioner (Appeals) and made the following submissions: (i) An appeal can be filled under section 128 of the Customs Act before the Commissioner (Appeals) for re-assessment of the Bills of Entry within 60 days from the date of communication of the assessment order and delay of 30 days beyond this period can only be condoned. In the instant case, the Bills of Entry were self-assessed by the importer and were filed from 07.10.2014 to 17.07.2015. They were given out of charge from 09.10.2014 to 17.07.2015. The appeals were, however, filed on 17.12.2019 with a delay of 4 years and 5 months; and (ii) The Commissioner (Appeals) correctly held that all the three conditions set out in section 14 of the Limitation Act were not satisfied by the appellant. 64. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s aspect was examined at length by the Supreme Court in M.P. Steel Corporation vs. Commissioner of Central Excise [2015 (319) E.L.T. 373 (S.C.)]. The Supreme Court held that though on a plain reading of the provisions of the Limitation Act it would be clear that suits, appeals and applications are only to be considered from the limitation point of view if they are filed in courts and not before quasi-judicial bodies, but after making reference to the decision of the Supreme Court in P. Sarathi vs. State Bank of India [(2000) 5 SCC 355], the Supreme Court observed that it would also be applicable to proceedings before Tribunals. The observations of the Supreme Court are as follows: "31. This judgment is in line with a large number of authorities which have held that Section 14 should be liberally construed to advance the cause of justice - see : Shakti Tubes Ltd. v. State of Bihar, (2009) 1 SCC 786 and the judgments cited therein. Obviously, the context of Section 14 would require that the term "Court" be liberally construed to include within it quasi-judicial Tribunals as well. This is for the very good reason that the principle of Section 14 is that whenever a person bona fide p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would stand excluded as section 128 of the Customs Act is a complete code which deals with limitation also. In this context the Supreme Court observed that the principles of section 14 of the Limitation Act would apply to an appeal filed under section 128 of the Customs Act and the observations are as follows: "34. However, it remains to consider whether Shri Sanghi is right in stating that Section 128 is a complete code by itself which necessarily excludes the application of Section 14 of the Limitation Act. For this proposition he relied strongly on Parson Tools which has been discussed hereinabove. As has already been stated, Parson Tools was a judgment which turned on the three features mentioned in the said case. Unlike the U.P. Sales Tax Act, there is no provision in the Customs Act which enables a party to invoke suo motu the Appellate power and grant relief to a person who institutes an appeal out of time in an appropriate case. Also, Section 10 of the U.P. Sales Tax Act dealt with the filing of a revision petition after a first appeal had already been rejected, and not to a case of a first appeal as provided under Section 128 of the Customs Act. Another feature, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues to be the stated period and not more than the stated period. We conclude, therefore, that the principle of Section 14 which is a principle based on advancing the cause of justice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case." (emphasis supplied) 72. It would also be necessary to examine the factual position of the appeal before the Supreme Court in M.P. Steel to find out the reason why the application was filed by the appellant therein under section 14 of the Limitation Act and why the said application was allowed by the Supreme Court. 73. The appellant therein had imported a vessel for the purpose of breaking it and filed a Bill of Entry on 07.02.1992 declaring the tonnage of the vessel as 7009 MT. On 19.02.1992, the appellant was informed by the Superintendent that the tonnage was actually 8570 MT and, therefore, customs duty was required to be paid on this tonnage. On 03.03.1992, the appellant cleared the vessel on payment of customs duty on the basis of 7009 MT and executed a bank guarantee for the differential customs duty on 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Act contained five conditions as was earlier noticed by the Supreme Court in Consolidated Engg. Enterprises vs. Principal Secy., Irrigation Deptt [(2008) 7 SCC 169], wherein it was held: "21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a Court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a Court." 75. It is in this context that the Supreme Court observed: "We might also point out that Conditions 1 to 4 mentioned in the Consolidated Engineering case have, in fact, been met by the appellant. It is clear that both the prior and subsequent proceedings are civil proceedings prosecuted by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and the observations contained in paragraph 52 of the judgment of the Supreme Court are reproduced below: "52. ***** The abortive appeal had been filed against orders passed in March-April, 1992. The present appeal was filed under Section 128, which Section continues on the statute book till date. Before its amendment in 2001, it provided a maximum period of 180 days within which an appeal could be filed. Time began to run on 3-4-1992 under Section 128 pre-amendment when the appellant received the order of the Superintendent of Customs intimating it about an order passed by the Collector of Customs on 25-3-1992. Under Section 128 as it then stood a person aggrieved by a decision or order passed by a Superintendent of Customs could appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order. On the principles contained in Section 14 of the Limitation Act the time taken in prosecuting an abortive proceeding would have to be excluded as the appellant was prosecuting bona fide with due diligence the appeal before CEGAT which was allowed in its favour by CEGAT on 23-6-1998. The Department preferred an appeal against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be condoned. By applying the principles enshrined in section 14 of the Limitation Act, the Supreme Court held that the time period from 22.06.1992, on which date the appeal had been filed by the appellant before the Tribunal upto 12.03.2003 on which date the Supreme Court decided the matter would have to be excluded. It was, therefore, held by the Supreme Court that the period from 03.04.1992 upto 22.06.1992 and thereafter from 12.03.2003 to 23.05.2003 [on which date the appeal was filed before the Commissioner (Appeals)] would be within the total period of 180 days contemplated under section 128 of the Customs Act. The appeal was, therefore, found to have been filed within time by excluding the time period contemplated under section 14 of the Limitation Act. 80. In the present case, the appellant had also bona fide pursued the remedy of filing refund applications before the Deputy Commissioner instead of filing an appeal before the Commissioner (Appeals) against the order of assessment. The Delhi High Court had also, at the instance of the appellant, directed that refund applications should be allowed and refund should be sanctioned. It is only when the Supreme Court revers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the refund applications on 25.09.2015 upto 18.09.2019, on which date the Supreme Court decided ITC. 82. The issue, however, that arises for consideration is whether the appeals can still be said to have been filed within the time period stipulated in section 128 of the Customs Act even if the aforesaid period from 25.09.2015 upto 18.09.2019 is excluded for the purpose of calculating the limitation period. In the instant case, the Bills of Entry were self-assessed by the appellant and were filed from 07.10.2014 to 17.07.2015. They were given out of charge from 07.09.2014 to 17.07.2015. Even if the last of this date i.e. 17.07.2015 is taken into consideration, the refund applications were filed only on 25.09.2015. The appellant could have filed an appeal before the Commissioner (Appeals) within 60 days as provided under section 128(1) of the Customs Act. Thus, the appeal could have been filed within 60 days from 17.07.2015 i.e. upto 16.09.2015 and a delay of 30 days only after the expiry of the said period of 60 days could be condoned. 83. This is what was held by the Supreme Court in Singh Enterprises vs. CCE, Jamshedpur [2008 (221) E.L.T. 163 (SC)]. The Supreme Court examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that there was no power to condone the delay after the expiry of 30 days period. 9. Learned counsel for the appellant has emphasized on certain decisions, more particularly, I.T.C.'s case (supra) to contend that the High Court and this Court in appropriate cases condoned the delay on sufficient cause being shown. 10. Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period. From the application for condonation of delay, it appears that the appellant has categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business there was delay does not stand to be reason. I.T.C.'s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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