Bona fide pursuit before the wrong forum can justify exclusion of time and remand for merits without pre-deposit.

Time bona fide spent pursuing remedies before a wrong forum may be excluded for limitation purposes, and where the higher court has left condonation open, the appellate authority should not reject the appeal solely on delay. The refusal to condone delay was treated as unsustainable because the assessee had earlier pursued proceedings before the High Court and Supreme Court, and the appeal was to be considered on its own merits. The matter was remanded for fresh decision by the Commissioner (Appeals) without insisting on pre-deposit.

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Issues: Whether the delay in filing the excise appeal before the Commissioner (Appeals) was liable to be condoned by excluding the time spent in pursuing proceedings before the wrong forum, and whether the matter should be remanded for decision on merits without insisting on pre-deposit.

Analysis: The appeal had been filed after a long delay because the assessee had earlier pursued remedies before the High Court and the Supreme Court. The order of the Supreme Court expressly stated that the question of condonation of delay was left open for the Commissioner (Appeals) and that the appeal, if entertained, would be considered on its own merits uninfluenced by observations in the High Court judgment. In these circumstances, the time spent before the wrong forum was treated as liable to be excluded, and the approach taken by the Commissioner (Appeals) in refusing to condone the delay was held to be unsustainable. The Tribunal also directed that the appeal be heard on merits without insisting on pre-deposit.

Conclusion: The delay was condoned, and the matter was remanded to the Commissioner (Appeals) for fresh decision on merits without pre-deposit.

Final Conclusion: The assessee obtained relief on limitation and procedure, but the substantive dispute was left to be decided afresh by the appellate authority.

Ratio Decidendi: Time bona fide spent in pursuing a remedy before a wrong forum may be excluded for limitation purposes, and where the higher court has left the question of delay open, the appellate authority should decide the appeal on merits after condoning the delay.

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