TaxTMI 
TaxTMI 
2013 (11) TMI 1029
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....ble High Court in the case of Ajantha Leather Fasions Ltd. Vs Union of India reported in 1998 (98) E.L.T.45 (Cal.). In that case, the petitioner moved Writ Petition before High Court for non-implementation of the order of the Tribunal. In the present case, we find that the adjudicating authority complied with the Tribunal order and passed the de novo adjudication order and there is an appeal remedy available under Section 35(1) of the Act, 1944 6.1 It is seen that the preamble of the de novo Adjudication dated 17.02.2009 indicates that any person remain himself aggrieved by the order may appeal against the same to the Commissioner (Appeals). It is noted that the Tribunal has not given any observation on condonation of delay of filing of appeals before the Commissioner (Appeals). 7. The Hon'ble Supreme Court in the case of Singh Enterprises (supra) held that Commissioner (Appeals) has no power to condone the appeal beyond the stipulated period. The relevant portion of the said decision is reproduced herein below:- 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested ....
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....ances, it is prayed that this Hon'ble Tribunal may be pleased to set aside the Order-in-Appeal no.43-45/2011 dated 31/01/2011 passed by the Commissioner of Central Excise (Appeals), Madurai and to declare that the Order in Original Nos.03/JC/CE/2009 and 04/JC/CE/2009 both dated 17/02/2009 were passed without implementing the remand orders of this Hon'ble Tribunal and to direct the Commissioner (Appeals), Madurai to restore the appeal A.Nos.25 and 26/2010 (TVL) and to pass necessary orders on merits after allowing the period of 30 days under proviso to Section 35(1) of the Act, and suitably rectify the error apparent on the face of the final order 40078-40080/2013 dt. 27/2/2013 in appeal No.E/S/127 to 129/2011 and in Appeal nos.E/213 to 215/2011 and thereby render justice. 4. The Ld. Advocate on behalf of the applicant submits that, the Denovo adjudication order dt. 17.2.09 was received by the applicant on 20.2.09, which was passed in pursuant to Tribunal's remand order dt. 6.10.2005 as well as Misc Order dt. 30.9.08. After receipt of Denovo Adjudication order, they filed Misc applications before the Tribunal on 20.4.2009 as the Tribunals remand order was not duly complied with by....
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.... Application No.169/2010, FERA Appeal (Stamp) No.12870/2010. 5. On the other hand, Ld.AR for Revenue submits that the Tribunal had already passed the final order after considering the submission of the applicant as recorded in the order in detail. He further submits that Tribunal had given categorical finding that the order was passed without going into the merits as the appeals were dismissed as time-barred by Commissioner (Appeals) and therefore observation of the Tribunal on this issue, if any, is not relevant. It is further submitted that the Tribunal, only recorded the finding of the adjudicating authority at para-5 of final order and had not given any finding on this issue. Regarding the submission of learned advocate that exclusion of certain period while computing limitation, he submits that this issue was not placed at the time of passing final order and therefore this cannot be agitated in the ROM applications. He relies on the decision of the Hon'ble Supreme Court in the case of CCE Belapur Mumbai Vs RDC Concrete (India) P. Ltd. - 2011 (270) ELT 625 (SC). He also relies upon the decision of the Hon'ble Madras High Court in the case of Soft hosiery Mills Vs CCE - 2011 (2....
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.... Act, 1963 provides for exclusion of time of proceeding bonafide in court without jurisdiction. Sub-section (1) of Section 14 provides that in computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is presented in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. In the instant case, the Tribunal had given a detailed finding about the conduct of the appellant in the final order. In our considered view, the applicability of Section 14 of the said Act would depend on the examination of the entire facts on record of the case and such re-appreciation of facts are not permissible in the present application. 9. In any event, sub-section (1) of Section 14 of the said Act, 1963 would apply in the case of proceeding pending 'in a court of first instance or of appeal or revision'. In the present case, it is seen that no appeal or revision was pending before any court, e....