2025 (9) TMI 1269 - HC - Central Excise

Condonation denied for delayed appeal under s.35-G(2)(a); no s.14 Limitation exclusion due to jurisdictional hearing, costs imposed

Sanvijay Rolling and Engineering Ltd., Hingna Road, Nagpur through its authorised signatory Versus Commissioner of CGST and Central Excise, Nagpur -1]

HC refused condonation of delay in filing the appeal under s.35-G(2)(a) of the Central Excise Act, 1944, holding there was no exclusion of time under s.14 ... Condonation of delay in filing appeal u/s 35-G(2)(a) of the Central Excise Act, 1944 - sufficient cause to condone delay or not - HELD THAT:- To extend benefit u/s 14, the litigant should pursue cause before the Court, who had either no jurisdiction or had some disability to entertain the proceedings. It is also noted that it is not the case of the applicant that proceedings under Section 35-C(2) of the Act of 1944 were not maintainable before the appellate tribunal, rather, the proceedings have been entertained and a decision taken by the appellate tribunal. That being so, there arises no question of exclusion of time in accordance with Section 14 of the Limitation Act. More so, when the applicant has challenged order dated 30-8-2022 passed by the appellate tribunal, rejecting the application for rectification of mistake. Writ Petition No. 5008/2024 to that effect is filed. Thus, the applicant is maintaining his stand that there occurred apparent error in the impugned order. Put altogether, firstly, there was no reason for the applicant to have argued the matter twice, initially through Advocate Shri P. K. Mohta and thereafter by Shri V. Sridharan, learned Senior Counsel. Further, there appears no justification as to why should on one point, the applicant cite multiple judgments, that too, where the point involved has no connection with the judgments cited by the applicant. The applicant, therefore, carries a blame of consuming judicial time of the Court for no valid reason. The applications are accordingly rejected with costs of Rs. 5,000/- for each application. Appeal disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether sufficient cause is shown to condone delay in filing an appeal under Section 35-G(2)(a) of the Central Excise Act, 1944 where the appeal was filed after the 180-day period elapsed. 2. Whether pendency of an application for rectification under Section 35-C(2) suspends or delays the commencement of the limitation period for filing an appeal under Section 35-G(2). 3. Whether time spent pursuing relief by way of rectification under Section 35-C(2) can be excluded under Section 14 of the Limitation Act, 1963 as time spent before a forum lacking jurisdiction or otherwise unable to entertain the proceedings. 4. Whether a litigant may simultaneously pursue rectification under Section 35-C(2) and an appeal under Section 35-G(2), and the legal consequences of doing so. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Sufficiency of cause to condone delay under Section 35-G(2)(a) Legal framework: Section 35-G(2) prescribes a 180-day limitation for appeal to the High Court; Section 35-G(2a) permits the High Court to admit an appeal after expiry of 180 days if satisfied that there was sufficient cause for delay. Principles on 'sufficient cause' require adequate justification for failure to act within limitation and permit refusal where there is negligence or lack of bona fide diligence. Precedent treatment: The Court referred to established Supreme Court principles that condonation requires satisfactory explanation of delay and that courts must not condone inordinate delay where sufficient cause is lacking. Interpretation and reasoning: The applicant filed the appeal well beyond 180 days (claimed delay 184 days) and relied primarily on pendency of a rectification application as explanation. The Court examined whether that reliance constituted 'sufficient cause' and found it did not, because the rectification proceeding was an available and maintainable remedy before the same appellate tribunal and therefore did not render the High Court unable to entertain an appeal nor excuse the filing within the prescribed period. Ratio vs. Obiter: Ratio - Delay cannot be condoned merely because a rectification application is pending where the rectification remedy is maintainable and the party knowingly pursued it; a party must provide an adequate explanation for delay independent of such pendency. Conclusion: The applicant failed to show sufficient cause; condonation was rejected and costs imposed. Issue 2 - Effect of pendency of rectification application (Section 35-C(2)) on commencement of limitation for appeal (Section 35-G(2)) Legal framework: Section 35-C(2) permits rectification of mistakes apparent from the record by the appellate tribunal. Where rectification is sought, question arises whether limitation for appeal runs from original order or from disposal of rectification application. Precedent treatment: The Court cited authorities holding that the limitation period for challenging a final order runs from the date of the rectification/review order (i.e., the latest, rectified order) where rectification/review has been validly pursued and the rectification affects the finality of the order. Interpretation and reasoning: The Court concluded that where a rectification application is pending and could affect the operative order, the period for filing an appeal may commence from the rectification decision. However, that principle does not authorize filing a High Court appeal while the rectification application remains pending and without withdrawing the rectification application; filing during pendency amounts to pursuing inconsistent remedies and is impermissible in the circumstances of the present case. Ratio vs. Obiter: Ratio - Limitation for appeal ordinarily commences from the date of the rectification/review order where such proceeding legitimately affects the operative order; but pendency of rectification does not per se excuse premature filing of an appeal when the applicant has affirmatively asserted that rectification, if allowed, would obviate the appeal. Conclusion: Pendency of a rectification application may affect the start date of limitation, but it does not justify filing an appeal before the rectification is decided (absent withdrawal or other exceptional justification). Issue 3 - Applicability of Section 14 Limitation Act (exclusion of time spent in wrong forum) to time spent pursuing rectification under Section 35-C(2) Legal framework: Section 14 of the Limitation Act excludes from computation of limitation time during which proceedings are 'perceived with due diligence and in good faith' before a forum which, from defect of jurisdiction or other like cause, is unable to entertain them. Precedent treatment: The Court reviewed authorities applying Section 14 where litigants legitimately pursued remedies before fora lacking jurisdiction or unable to entertain the proceedings; such exclusion is confined to cases of defect of jurisdiction or clear incapacity of the forum to adjudicate. Interpretation and reasoning: The Court held Section 14 inapplicable because the rectification application under Section 35-C(2) was maintainable and entertained by the appellate tribunal; there was no defect of jurisdiction or incapacity. The applicant did not present a case of having approached a wrong forum or of any jurisdictional disability that would trigger Section 14 relief. Reliance on numerous judgments on Section 14 therefore did not assist the applicant. Ratio vs. Obiter: Ratio - Time spent pursuing a remedy before a forum properly competent to entertain it cannot be excluded under Section 14; exclusion applies only where the forum had a defect of jurisdiction or analogous incapacity. Conclusion: Section 14 exclusion is not available where the rectification application was maintainable and competent tribunal entertained it; therefore the applicant cannot rely on Section 14 to excuse the delay in filing the appeal. Issue 4 - Permissibility and consequences of pursuing rectification and appeal simultaneously Legal framework: Distinction between rectification (narrow remedy for mistake apparent on face of record) and appeal (challenge involving substantial question of law requiring detailed hearing). The litigant must elect the appropriate remedy consistent with the nature of the grievance. Precedent treatment: The Court relied on principles that inconsistent or contradictory standpoints in different forums are impermissible since they may lead to conflicting adjudications and are procedurally unacceptable. Interpretation and reasoning: The Court reasoned that the applicant's simultaneous posture - asserting both that the impugned order contains an apparent mistake (rectification) and that the order involves substantial questions of law (appeal) - is internally inconsistent. Filing an appeal while a rectification application is pending, without withdrawal, is impermissible where the applicant admits that rectification, if allowed, would render the appeal redundant. Such conduct risks two courts taking contrary views and represents lack of decisional consistency and diligence. Ratio vs. Obiter: Ratio - A litigant cannot simultaneously and inconsistently pursue rectification for a mistake apparent on the record and an appeal predicated on substantial questions of law against the same order; filing an appeal while rectification remains undecided (and is relied upon by the litigant) is impermissible. Conclusion: The simultaneous pursuit was impermissible; the appeal filed during pendency of rectification without withdrawal was not maintainable and did not constitute sufficient cause for condoning delay. Ancillary findings - Liberal approach to condonation and imposition of costs Legal framework: Courts adopt a liberal approach to condoning delay but remain bound to statutory limits and must require satisfactory explanation for delay; courts may impose conditions including costs when granting or refusing condonation. Interpretation and reasoning: Although a liberal approach exists, it cannot be invoked to override statutory principles where no sufficient cause is shown. The applicant's conduct (multiplicity of arguments, reliance on inapposite authorities, change of counsel, duplication of hearings) merited costs for misuse of judicial time. Ratio vs. Obiter: Ratio - Liberal approach does not permit condonation when statutory requirements of sufficient cause are not met; courts may impose costs for misuse of process. Conclusion: Applications to condone delay were rejected and costs were imposed for each application; costs to be deposited and distributed as directed.