2013 (9) TMI 139 - AT - Customs

Tribunal sets aside time-barred dismissal, allows appeal filing after High Court litigation.

MEHUL JHAVERI Versus COMMISSIONER OF CUSTOMS, CSI AIRPORT, MUMBAI

The Tribunal ruled in favor of the appellant, setting aside the time-barred dismissal under Section 128 of the Customs Act, 1962. It held that time spent ... Condonation of delay in filing appeal - Appeal had been dismissed on the ground of being beyond the period prescribed u/s 128 - Held that:- Assesses were found to had been bona fide pursuing in a wrong forum for a remedy - the time taken by the assesse in litigation before the Hon’ble Bombay High Court was to be excluded for calculating the time for filing the appeal before the Commissioner (Appeals) - the time taken by the appellant in litigation before the Hon’ble Bombay High Court was excluded then the appeal filed before the Commissioner (Appeals) was within the time - Section 14(2) was applicable to the facts and circumstances of the case - following the judgement of Vijay Brothers & Others v. UOI [1988 (8) TMI 112 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH] - order set aside - directing the respondent to take the appeal on file and to dispose of the same on merits – order set aside - matter remanded 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 assesse – Decided in favor of assesse. Issues:Appeal dismissed on the ground of being time-barred under Section 128 of the Customs Act, 1962. Interpretation of Section 14 of the Limitation Act regarding exclusion of time spent in litigation before another forum for calculating appeal filing period.Analysis:The appellant appealed against an order dismissing their appeal as time-barred under Section 128 of the Customs Act, 1962, due to a delay of 16 years and 8 months. The Commissioner (Appeals) dismissed the appeal citing non-compliance with the 60-day filing period and the 30-day condonable delay provision. The appellant argued that Section 14 of the Limitation Act allows excluding time spent in litigation before another forum. The Hon'ble Bombay High Court directed the appellant to file an appeal within four weeks, considering the pending writ petition. The Tribunal noted the dispute on whether time spent in litigation before the High Court was excludable for limitation purposes.The Tribunal referenced the case of M/s. Vijay Brothers, where time spent in litigation before the High Court was deemed excludable for calculating the appeal filing period. The Tribunal distinguished other cases cited by the Revenue, emphasizing the relevance of the specific circumstances in the present case. It concluded that the time spent in litigation before the High Court should be excluded, making the appeal filed before the Commissioner (Appeals) within the time limit. Consequently, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for considering the case on its merits.In summary, the Tribunal's decision hinged on the interpretation of Section 14 of the Limitation Act to exclude the time spent in litigation before the High Court for calculating the appeal filing period. By applying the precedent set in the M/s. Vijay Brothers case, the Tribunal found in favor of the appellant, setting aside the time-barred dismissal and remanding the case for further consideration on its merits.