2015 (6) TMI 298 - HC - Central Excise

Court grants writ petitions, sets aside orders, directs deposit, and instructs adjudication and hearing.

The court allowed the writ petitions, set aside the impugned orders, and condoned the delay in filing the revision petitions. The petitioner was directed ... Limitation under Section 35EE - condonation of delay - communication of order and return of papers - maintainability of appeal ousted by proviso to Section 35B - revision by Central GovernmentLimitation under Section 35EE - communication of order and return of papers - condonation of delay - Computation of limitation for filing revision under Section 35EE and whether the revisional authority was correct to reject the revision as time barred. - HELD THAT: - Section 35EE requires a revision application to be made within three months from the date of communication of the order, with a further condonable period of three months if sufficient cause is shown. The Tribunal dismissed the appeal as not maintainable and returned the papers to the petitioner; the court held that the period of limitation for presenting a revision to the Revisional Authority commences from the date on which the petitioner received the certified copy of the Tribunal's order along with the original papers. Applying that principle, the petitioner received the Tribunal's order and papers on 24-3-2011 and filed the revision on 8-7-2011. Calculated from 24-3-2011 the revision was within three months and 14 days; the short delay was within the condonable period and was not inordinate. The revisional authority therefore erred in computing limitation from the earlier appellate order date and in rejecting the revision as beyond condonable time. [Paras 11, 16, 17]Delay must be computed from date of communication of the Tribunal's order with papers (24-3-2011); the revisional authority was incorrect to hold the revision beyond the condonable period and ought to have condoned the delay.Revision by Central Government - maintainability of appeal ousted by proviso to Section 35B - Consequent relief and further proceedings after condonation of delay. - HELD THAT: - The Tribunal held the appeal not maintainable in view of the first proviso to Section 35B and returned the papers for presentation before the proper forum, namely the Revisional Authority. Having found that the delay in filing the revision is condonable, the High Court set aside the revisional authority's order rejecting the revision as time barred, directed the petitioner to comply with a further pre-deposit condition, and remitted the matter to the Revisional Authority to issue adjudication notice, afford personal hearing and decide the revision on merits. [Paras 15, 18]The writ petitions are allowed; delay is condoned subject to a further pre-deposit and the matter is remitted to the Revisional Authority to consider and dispose of the revision on merits after hearing the petitioner.Final Conclusion: Writ petitions allowed; impugned orders rejecting the revisions as time barred set aside, delay condoned subject to a directed pre-deposit, and the revisional authority directed to adjudicate the revision on merits after issuing notice and hearing the petitioner. Issues Involved:1. Whether the order rejecting the revision petition as time-barred is just and proper.2. Computation of the limitation period for filing the revision petition.3. Applicability of Section 14(2) of the Limitation Act.4. Whether the petitioner was bona fide in prosecuting the appeal before the wrong forum.Issue-Wise Detailed Analysis:1. Whether the order rejecting the revision petition as time-barred is just and proper:The primary issue is whether the first respondent's order rejecting the revision petition as time-barred under Section 35EE of the Central Excise Act, 1944, is justified. The court examined the sequence of events and the period during which the appeal was pending before the CESTAT. The court noted that the petitioner filed the revision petition within three months and 14 days after receiving the Tribunal's order on 24-3-2011. The court concluded that the delay of 14 days was not inordinate and could have been condoned by the revisional authority.2. Computation of the limitation period for filing the revision petition:Section 35EE of the Central Excise Act stipulates that a revision application must be filed within three months from the date of communication of the order, with a further condonable period of three months. The court emphasized that the starting point for computing the limitation should be the date on which the petitioner received the certified copy of the Tribunal's order along with the returned papers, which was 24-3-2011. Therefore, the revision petition filed on 8-7-2011 was within the permissible period, including the condonable delay of 14 days.3. Applicability of Section 14(2) of the Limitation Act:The respondents argued that Section 14(2) of the Limitation Act, which allows for the exclusion of time spent in bona fide proceedings before a wrong forum, was not applicable. They cited precedents from the Supreme Court and the Rajasthan High Court. However, the court did not find it necessary to delve deeply into this argument, as it focused on the specific provisions of Section 35EE and the bona fide actions of the petitioner.4. Whether the petitioner was bona fide in prosecuting the appeal before the wrong forum:The court acknowledged that the petitioner was under a bona fide belief that an appeal lay before the Tribunal. The Tribunal entertained the appeal, issued notices, and granted interim relief, which further reinforced the petitioner's belief. The Department did not challenge the maintainability of the appeal until 2011. The court found that the petitioner acted in good faith and diligently pursued the matter before the wrong forum due to a genuine misunderstanding.Conclusion:The court allowed the writ petitions, set aside the impugned orders, and condoned the delay in filing the revision petitions. The petitioner was directed to deposit a further sum of Rs. 2,50,000/- with the Deputy Commissioner of Central Excise within four weeks. Upon compliance, the first respondent was instructed to issue an adjudication notice, conduct a personal hearing, and dispose of the matter on merits. No costs were awarded, and connected miscellaneous petitions were closed.