TaxTMI 
TaxTMI 
2009 (3) TMI 624
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....on. The ROM application was filed on 18-9-2008, long after the prescribed period of 6 months expired. It is this delay which is sought to be condoned in the second application. 2. We have heard both sides and considered their submissions. 3. The learned counsel for the applicant has argued that, if the period taken by the party for pursuing wrong remedy before the Hon'ble High Court against our final order is excluded in terms of Section 14 of the Limitation Act, there is no delay in the filing of the ROM application. Against our final order, the party filed Writ Petition before the High Court on 14-12-2004 and this petition was later on converted into a regular appeal, which happened on 29-3-2005. On 30-7-2008, a Division B....
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....3) E.L.T. 249 (S.C.), the Hon'ble Supreme Court, in a Civil Appeal filed by the party against a final order of this Tribunal, directed this Tribunal to apply Section 14 of the Limitation Act in dealing with delay condonation application filed by the appellant under Section 35B(3) of the Central Excise Act. In the case of Cairn Energy India Pty. Ltd. v. Commissioner of Central Excise & Customs, Visak-II - 2008 (221) E.L.T. 440 (Tri.-Bang.), this Tribunal held that the time spent by the party before a wrong forum against an adverse order of adjudication was excludable in calculating the period for filing of appeal with the Commissioner (Appeals) under Section 35 of the Central Excise Act. In the case of Bharat Earth Movers Ltd. v. Commissione....
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.... Section 35 of the Central Excise Act. The learned JCDR has also relied on the High Court's judgment in Delta Impex v. Commissioner of Customs (ACU), New Delhi - 2004 (173) E.L.T. 449 (Del.), wherein an order of the Commissioner (Appeals) dismissing as time-barred the appeal filed by the party under Section 128 of the Customs Act beyond the condonable period of delay prescribed thereunder, was sustained and the Tribunal's order sustaining the appellate Commissioner's decision was also upheld. The Hon'ble High Court held that where a maximum time limit was specified for condonation of delay, delay to that extent only could be condoned and no further, and further held that the appellate authority had no jurisdiction to condone any delay beyon....
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....ellant spent some time in prosecuting legal proceedings under Article 226 of the Constitution of India against an order of adjudication passed by the proper officer under the Customs Act. They realised the mistake and filed an appeal with the Commissioner (Appeals), which was belated with reference to the provisions of Section 128 of the Customs Act. The Hon'ble High Court held that the time taken by the party for bona fide proceedings before the High Court could be excluded in computing the period of limitation for appeal filed under Section 128 of the Act. Against the High Court's decision, the Union of India filed a Civil Appeal which came to be dismissed for non-prosecution, by the Supreme Court. Neither the decision of the High Court i....
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....f appeal beyond the condonable period prescribed under Section 128 of the Customs Act, which prescribed a normal period of 60 days for an appeal to the Commissioner (Appeals) and further prescribed a period of 30 days for condonation of delay. Their Lordships held that the appellate Commissioner did not have jurisdiction to condone any delay beyond this period of 30 days. Obviously, jurisdiction has to be conferred on any appellate authority by Parliament. In the present case, though Parliament prescribed a period of six months for the filing of an application for rectification of mistake in a final order passed by this Tribunal, they did not choose to confer jurisdiction on this Tribunal to condone any delay beyond this period. We repeat, ....