TaxTMI 
TaxTMI 
2015 (1) TMI 22
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.... same be quashed and set aside. 3) It is the case of the Petitioner that it is a private limited company registered and incorporated under Indian Companies Act, 1956. It is engaged inter alia in the business of operation of duty free shops at airports and seaports in India. The Petitioner is running duty free shops pursuant to contracts and it is their case that presently 35 duty free shops at various airports and seaports are owned and operated by them. They are employing about 312 employees. 4) The case of the Petitioner is that it was granted licence by the Jurisdictional Commissioner of Customs to operate such shops and that has been renewed from time to time. The Petitioner submits that in pursuance of an approval from the Customs Department, the duty free shop/warehouse is declared as bonded store. The Petitioner has been earning valuable foreign exchange for the Country. It submits that it is strictly adhering to the terms and conditions of the licence. It relies on a licence styled as private bonded licence issued in its favour by the Mumbai Customs. The licence was granted from 20th March, 2006 to 25th July, 2006. The Petitioner has been carrying on business and with....
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....g proceedings before this Court, such an application shall be considered duly and sympathetically. 2. The Petitioner has also sought a direction for the renewal of a licence which has since been renewed. Hence, the relief sought in that respect stands worked out. As regards the claim for refund of cost recovery charges, it would be open to the Petitioner to pursue the claim in accordance with law with the authorities. 3. We accordingly dispose of the Petition leaving it open to the Petitioner to pursue the remedies available in law. There shall be no order as to costs." 5) The Petitioner, on 12th December, 2011, preferred an Appeal under section 128(1) of the Customs Act, 1962 before the Commissioner of Customs (Appeals)/Respondent No. 1. Along with the same, it filed two applications, one seeking condonation of delay and the other for stay of the recovery of the amount pursuant to the order dated 27th June, 2011. A personal hearing was given to the Petitioner on the application filed seeking condonation of delay. 6) We are not as much concerned with the development pertaining to recovery and payment of certain sums as set out in para 20 of the Petition. We are only con....
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....ority to have considered the cause shown. The Appellate Authority failed to apply its mind and to some vital factors. The first and foremost was that the Petitioners filed the Writ Petition on 30th August, 2011. Since that Writ Petition was pending from 30th August, 2011 to 30th November, 2011 in this Court, the period or time, during which this Writ Petition was pending, ought to have been excluded by applying section 14(2) of the Limitation Act, 1963 or principle analogous thereto. Mr. Dhond submits that the reasons assigned in the impugned order are untenable in law because all that the Appellate Authority holds is that there is a 108 day's delay in filing of the Appeal. The Appellate Authority has no power and by virtue of the proviso to subsection (1) of section 128 of the Customs Act, 1962 to allow presentation of the Appeal beyond a total period of 90 days. If the delay is of 108 days, then, the Appellate Authority has no jurisdiction to condone it. Mr. Dhond submits that the Appellate Authority has not dismissed the statutory Appeal only by such findings and conclusions. The Appellate Authority has gone ahead and blamed the Petitioner for not adducing any evidence indic....
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....e Appellate Authority is not a Court within the meaning of subsection (2), yet, the Petitioner was prosecuting with the due diligence other civil proceedings. That was a proceeding under Article 226 of the Constitution of India in this Court, which can be styled as a civil proceeding. Therefore, the Appellate Authority, in this case, need not be a Court, particularly because section 14 of the Limitation Act, 1963 is an embodiment of general principle of equity and fairness. Hence, principles analogous to section 14 of the Limitation Act, 1963 applies to the present case. Further, he submits that if section 14 is contrasted with sections 5 and 12 of the Limitation Act, 1963, then, it would be evident that section 14 confers a right and there is no discretion in the matter of exclusion of time as envisaged by section 14(2). Whereas, in section 5, there is an element of discretion. For all these reasons, he submits that the impugned order be quashed and set aside and the Writ Petition be allowed. 13) Mr. Dhond has placed reliance upon the following decisions in support of his contentions: 1. Mukri Gopalan vs. Cheppilat Aboobacker - (1995) 5 SCC 5. 2. Rethinasamy vs. Komalaval....
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.... Appeal was barred by time. The Petitioner did not file the Appeal even after the expiry of 60 days, but approached this Court in its Writ Jurisdiction. The proviso to subsection (1) of section 128 of the Customs Act, 1962 does not extend the period of limitation, but only enables the Commissioner (Appeals) to condone the delay in filing of an Appeal before him by further period of 30 days. In other words, the proviso contemplates that if the Appellant was prevented by sufficient cause from presenting the Appeal within a period of 60 days, then, it can be presented within a further period of 30 days. Even that period expired, admittedly on 27th September, 2011. Mr. Jetly submits that mere pendency of a Writ Petition in this Court does not halt or stop the running of time. The time starts running from the date of communication of the order and it is only in exceptional circumstances that the time stops running. If the Petitioner does not avail of the statutory remedy within time and the Commissioner (Appeals) having no further power to condone the delay, then, no assistance can be derived from section 5 of the Limitation Act, 1963 or section 14 of the said Act. The provisions in the....
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....d period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section, shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 20) A bare perusal thereof would indicate that the Appeal before the Commissioner (Appeals) ought to be filed within a period of 60 days from the date of communication of the decision or order passed by an officer lower in rank to the Commissioner of Customs. That Appeal must be filed within 60 days. This period was substituted by the Finance Act, 2001 (14 of 2001) for the words "within three months". By the Finance Act, 2001, the proviso to subsection (1) of section 128 of the Customs Act, 1962 was substituted. The Commissioner was empowered to allow presentation of the Appeal within a further....
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....ing the total period of 90 days prescribed in section 128(1) of the Customs Act, 1962, as reproduced above. 23) With regard to this contention of Mr. Dhond, it would be worthwhile reproducing the three sections of the Limitation Act i.e. section 5, section 14 and section 29, which read as under: "5. Extension of prescribed period in certain cases. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 14. Exclusion of time of proceeding bona fide in Court without jurisdiction. (1) 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....
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....shall apply to any suit or other proceeding under any such law. (4) Section 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882, may for the time being extend." 24) A bare perusal of the three sections would reveal that the "period of limitation" means the period of limitation prescribed for a Suit, Appeal or Application by the Schedule and "prescribed period" means the period of limitation computed in accordance with the provision of the Limitation Act, 1963. Subsection (1) of section 3 of the Limitation Act, 1963 states that subject to the provisions contained in sections 4 to 24 (inclusive), every Suit instituted, Appeal preferred, and Application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Section 5 of the Limitation Act, 1963 only extends the prescribed period of limitation for filing of an Appeal or Application, other than the one under Order XXI of the Code of Civil Procedure, 1908 and such proceeding can be admitted after the prescribed period, if the Appellant or the Applicant satisfies the Court that he/she ha....
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....d rupees) require the Tribunal to refer to the High Court any question of law arising out of such order; and where the Tribunal agrees, the Tribunal shall, as soon as may be after the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided that, if in the exercise of its power under this subsection the Tribunal refuses to state the case which it has been required to do, on the ground that no question of law arises, that person, the Additional Commissioner of Sales Tax having jurisdiction over the whole of the State, or as the case may be, the Commissioner, may, within ninety days of such refusal, either withdraw his application (and if he does so any fee paid shall be refunded), or apply to the High Court against such refusal. Provided further that, the Tribunal may refuse to refer the case of the High Court, if the person or, as the case may be, the Commissioner fails to submit the paper book and other documents required by the Tribunal, within a period of three months from the date of order of the Tribunal served on that person or, as the case may be, the Commissioner. (2) If upon receipt of an application under subsection (1....
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....ssed by the Tribunal in Appeal and which affects the liability of any person to pay tax or penalty or interest or to forfeiture of any sum or which affects the recovery from any person of any amount under section 39 of the Bombay Sales Tax Act, 1959. That person can invoke the jurisdiction of the Tribunal or equally the Additional Commissioner of Sales Tax having jurisdiction over the whole State or the Commissioner of Sales Tax can as well approach the Tribunal in terms of the first part of section 61 of the Bombay Sales Tax Act, 1959. 12 The second part of section 61 and with which we are really concerned is the first proviso to section 61(1) of the Bombay Sales Tax Act, 1959. In that proviso it is provided that if the Tribunal in exercise of its powers under subsection (1) refuses to state the case which it has been required to do, on the ground that no question of law arises, the person who has invoked the Tribunal's jurisdiction under section 61 may within 90 days of such refusal, either withdraw his Application or apply to the High Court against such refusal. Thereafter, there are further subsections and which enable this Court to exercise its jurisdiction and answer the q....
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....9. Section 5 of the Limitation Act would not be applicable, considering the provisions of sections 59 and 60 of the Act of 1959, which exclude expressly or by necessary implication, the application of the provisions of the Limitation Act except sections 4 and 12. Section 59 of the Act provides that in computing the period of limitation, only the provisions of sections 4 and 12 of the Limitation Act in so far as they relate to proceedings under the provisions of sections 55, 57 and 61 will apply. A literal reading of section 59 can only lead to the conclusion, that all proceedings under Section 61, including under subsection (1) or under its proviso, only the provisions of sections 4 and 12 of the Limitation Act would apply. Therefore, in such proceedings, the application of section 5 of the Limitation Act is expressly excluded. Section 60 of the Act of 1959 confers power for extension of period of limitation only on an appellate authority while admitting an appeal under Section 55. Considering the language of section 60 and the object behind enacting it, an inference can be drawn that Section 60 was enacted to exclude the application of Section 5 of the Limitation Act. By necessary....
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....ether two judge Bench decision of the Hon'ble Supreme Court was correct in laying down the law that the revisional powers cannot be exercised beyond the statutory limit or the limitation prescribed by law. In other words, the delay in filing a Revision Petition invoking section 19 of this Act cannot be condoned after the period specified therein and by taking recourse to section 5 of the Limitation Act, 1963. The observations, conclusions and findings of the Hon'ble Supreme Court are instructive. In para 19 of this judgment the Supreme Court framed the question no.1 and in answering the same referred to not only the Madhya Pradesh Act but the Limitation Act, 1963 and held that it is a general legislation on the law of limitation. It expressly referred to section 5 and 29 thereof in paras 25 and 26. Thereafter, the judgments brought to its notice by parties have been referred in paras 27, 28 and 29. Some of the judgments that the Hon'ble Supreme Court referred are also cited in the Division Bench order in Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers. 28 Therefore, it may be as Mr.Sonpal contented there should be an express exclusion of section 5 of the L....
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....herefore, only upon compliance of subsection 1 that the High Court can deal with the Application and then find out for the purpose of recording its satisfaction as to whether the Tribunal's decision not to refer any question and stated to be of law for opinion of this Court is correct or not. 29 The nature of the power must therefore be borne in mind. There is no comparison of this power with that of an Appellate power and to approach the Appellate Authority against an erroneous or incorrect decision is held to be a right conferred by the statute. More often then not we have seen a provision such as "an Appeal shall lie" which would be indicate that an Appellate power is created by the statute and that also confers a right in the aggrieved party to approach the Appellate Authority or Tribunal. It is a remedy to correct an erroneous, incorrect and illegal order and at the first available opportunity and within the statutory frame work, that the Appellate Authority has been conferred further power to condone the delay in filing of an Appeal. It is in such circumstances, that section 60 uses the words and of great significance, namely, the Appellate Authority may admit the Appeal u....
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....t is erroneous. 33 We are unable to agree with Mr. Sonpal because it is not the word "only" referred by the Division Bench but a conjoint and combined reading of the legal provisions referred by us which enables even us to hold that application of section 5 of the Limitation Ac, 1963 is excluded. The exclusion can be culled out from a combined reading of the legal provisions and that is not contrary to the Supreme Court judgment even in the case of State of Madhya Pradesh & Anr. vs. Anshuman Shukla (supra). In this regard paras 29 and 30 of the Judgment in State of Madhya Pradsh & Anr. vs. Anshuman Shukla (supra) can be usefully referred. They read as under: "29. Further, in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133: (AIR 1974 SC 480), a three judge Bench of this court, while examining whether the Limitation Act would be applicable to the provisions of Representation of People Act, observed as under: "17. ....but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete Code by itself which alone should g....
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....thereafter. 27) We have referred to a Judgment of the Hon'ble Supreme Court recently delivered by a three Judge Bench in the order passed by us in the case of M/s. Jonson and Jonson (supra). That decision of the Hon'ble Supreme Court makes detailed reference to several decisions rendered either by two Judge or three Judge Bench of the Hon'ble Supreme Court. The Hon'ble Supreme Court proceeds to hold that when applicability of section 5 of the Limitation Act is not absolute, but circumscribed or restricted, then, the statutory provision restricting or circumscribing it must be given effect to in the light of clear language of subsection (2) of section 29 of the Limitation Act, 1963. In other words, sections 4 to 24 (inclusive) shall apply only insofar as and to the extent to which they are not excluded by the special or local law. In our case, beyond further period of 30 days and total period of 90 days, there is no further application of section 5 of the Limitation Act, 1963. The extent to which section 5 can be applied having been enumerated and set out in section 128(1) of the Customs Act, 1963, which is a special law, then, for the further delay in filing or p....
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....of subsection (2) of section 14 of the Limitation Act, 1963. 30) We have already held that by subsection (2) of section 29 of the Limitation Act, 1963 and applying it to the facts of the present case, sections 4 to 24 (inclusive) of the Limitation Act, 1963 have limited application to the proceedings and particularly Appeals under section 128 of the Customs Act, 1962. The third assumption on which we proceed is that subsection (2) of section 14 of the Limitation Act, 1963 applies to Appeals as well. We are not impressed by Mr. Dhond's placing reliance on the Judgment of the Hon'ble Supreme Court in the case of Ketan Parekh vs. Special Director, Directorate of Enforcement and Anr. reported in (2011) 15 SCC 30. We have perused this Judgment very carefully and minutely. 31) The Hon'ble Supreme Court was approached by the Appellant to challenge an order passed by this Court on the application for condonation of delay in filing the Appeal under section 35 of the Foreign Exchange Management Act, 1999. This Court dismissed the application along with the Appeal. 32) After noticing the background facts and the rival contentions, particularly para 15, where the Enforcement D....
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.... 3. Reasons for the delay 3.1 The appellant declares that there is delay of 1056 days in filing the appeal as prescribed in the Limitation Act, 1963. 3.2 The appellant further states that the delay occurred as the writ petition was filed before the Delhi High Court on 5112007. The said writ was filed under the provisions of Articles 226 and 227 of the Constitution of India seeking issuance of a writ, order or direction in the nature of mandamus or any other writ for setting aside the impugned order dated 2-8-2007, passed by the Appellate Tribunal for Foreign Exchange under Rule 10 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 for dispensation. In the said writ proceedings the Hon'ble High Court of Delhi had passed an order on 26-7-2010. Vide the said order dated 26-7-2010, while relying on the judgment of the Hon'ble Supeme Court, it was held by the Hon'ble Delhi High Court that even an order passed by the Appellate Tribunal in an application seeking dispensation of predeposit of the penalty would be appealable under section 35 of the FEMA and that remedy under Article 226 is not available against such an order. Further, ....
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....ther matters including the proceedings pending before the Special Court at Bombay. It also appears that the appellants were sure that keeping in view their past conduct, the Bombay High Court may not interfere with the order of the Appellate Tribunal. Therefore, they took a chance before the Delhi High Court and succeeded in persuading the learned Single Judge of the Court to entertain their prayer for stay of further proceedings before the Appellate tribunal. The promptness with which the learned Senior Counsel appearing for the appellant, Kartik K. Parekh made a statement before the Delhi High Court on 7112007 that the writ petition may be converted into an appeal and considered on merits is a clear indication of the appellant's unwillingness to avail remedy before the High Court i.e. the Bombay High Court which had the exclusive jurisdiction to entertain an appeal under Section 35 of the Act." 33) We are unable to agree with Mr. Dhond that this Judgment would enable us to conclude that section 14 of the Limitation Act, 1963 can be invoked by the Petitioner to get over the outer limit or restriction in sub section (1) of section 128 of the Customs Act, 1962. In fact, all the J....
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....he Revenue filed an Appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), but, it held on 12th August, 2008 that the Appeal is not maintainable. The papers were returned for presentation before the appropriate Forum. The Revenue filed a Revision on 22nd October, 2008. On 23rd November, 2010, the Revision Application was dismissed on the ground that it was barred by limitation. Para 3 in the Judgment of Epcos India Pvt. Ltd. (supra) is relevant for our purpose. It reads as under: "3. We find merit in the contention of the petitioner that the period spent in prosecuting the proceedings bona fide before the CESTAT, which had no jurisdiction, would have to be excluded by giving the benefit of the provisions of Section 14 of the Limitation Act, 1963. The provisions of Section 14 of the Limitation Act would be attracted in view of the judgment of this Court in Rajkumar Shivhare v. Union of India - 2011 (273) E.L.T. 75 (Bom.). The period for filing a revision under Section 35EE(2) of the Central Excise Act, 1944 is three months. However, the Central Government, if the applicant was prevented by sufficient cause from presenting the application within three month....
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.... Petitioner. Placing reliance upon it is identical to the emphasis on the order passed in the Petitioner's Writ Petition by this Court. For the reasons afore-indicated the reliance on these Judgments is misplaced. 36) Further, in Rajkumar Shivhare vs. Union of India reported in (2011) 273 ELT 75 the Division Bench found that the period spent in prosecuting the Writ Petition to challenge an order rejecting application for dispensing with the condition of predeposit, together with the time spent challenging the High Court order in the Hon'ble Supreme Court can be excluded because section 14 of the Limitation Act, 1963 can be invoked. Further, if the facts in para 2 are noted, it would be apparent that there was a specific direction from the Hon'ble Supreme Court of India and in the following terms: "In view of this Court's jurisdiction under Article 136 of the Constitution, we give liberty to the appellant, if so advised, to file an appeal before an appropriate High Court within the meaning of Explanation to section 35 of FEMA and if such an appeal is filed within a period of thirty days from today, the appellate forum will consider the question of limitation sympathetically ha....
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....ction 5 of the Limitation Act, 1963 would stand excluded and the power of the High Court to condone a delay occasioned beyond the period specified by the proviso to section 35 would be excluded by virtue of the specific statutory provision. But merely because the provision of Section 5 of the Limitation Act, 1963 are rendered inapplicable that would not result in an inference that the provisions of Section 14 would not apply. That is simply because Section 14 is not a provision which confers upon the Court a power to condone the delay for sufficient cause but a provision by which a certain period has to be excluded in computing the period of limitation. Hence, there is absolutely no reason or justification for the Court to infer that Section 14 of the Limitation Act, 1963 cannot be applied in relation to the proceedings before the High Court in an Appeal under Section 35 of the FEMA. Section 35 of the FEMA does not in any event expressly exclude the application of Section 14 of the Limitation Act, 1963. 8. In arriving at this conclusion, we are fortified by the judgment of a Bench of three Judges of the Supreme Court in Consolidated Engineering Enterprises v. Principal Secretary....
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....itutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to ....
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.... may be true that the time can be excluded and that to seek exclusion is a right conferred in the Applicant, still, we cannot be unmindful of the clear legal position and which equally emerges from the decisions of the Hon'ble Supreme Court. 40) We would be failing in our duty if we do not make a reference to a Judgment of the Hon'ble Supreme Court in the case of Union of India vs. West Coast Paper Mills Ltd. reported in AIR 2004 SC 1596. The three Judge Bench of the Hon'ble supreme Court was considering an issue as to whether the time spent by West Coast (Respondent before the Hon'ble Supreme Court) in bonafide prosecuting the proceedings before the Railway Freight Rates Tribunal and challenging the order of that Tribunal before the Hon'ble Supreme Court can be excluded. While dealing with that question, the Hon'ble Supreme Court referred to the facts till para 7 and in para 8 noted the contentions of Union of India. Para 8 of the decision reads as under: "8. A contention that the said suits were barred by limitation was raised by the appellants herein stating that the cause of action for filing the same arose immediately after the judgment was passed by 'The Tribu....
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.... a Court or Tribunal. Once a Special Leave is granted and the appeal is admitted, the correctness or otherwise of the judgment of the Tribunal become wide open. In such an appeal, the Court is entitled to go into both questions of fact as well as law. In such an event the correctness of the judgment is in jeopardy. 15. Even in relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally disposed of by the Court of Appeal. 16. The starting point of limitation for filing a suit for the purpose of recovery of the excess amount of freight illegally realised would, thus, begin from the date of the order passed by this Court. It is also not in dispute that the respondent herein filed a writ petition which was not entertained on the ground stated hereinbefore. The respondents were, thus, also entitled to get the period during which the writ petition pending, excluded for computing the period of limitation. In that view of the matter, the civil suit was filed within the prescribed period of limitation. 17. The Trial Judge as also the High Court have recorded a concurrent opinion that the respond....
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....once this Court grants special leave and decides to hear the matter on merit." 44) Thus, the Hon'ble Supreme Court held in the case of Mohinder Singh (supra) that once limitation starts running, till its running is stopped by an order of the competent Civil Court or competent Authority, it cannot stop. It overruled the earlier Judgment in the case of P. K. Kutty Anuja Raja and Anr. vs. State of Kerala and Anr. reported in AIR 1996 SC 2212 only because no argument was advanced as regards the applicability of doctrine of merger. The Hon'ble Supreme Court entertained the SLP and granted leave to Appeal as also stay. The time spent in prosecuting the proceedings before the Hon'ble Supreme Court and which is bonafide was permitted to be excluded. Pertinently, the test laid down is applicable in a case where a Appeal is filed that being a continuation of the lis, its pendency can be relied upon to claim the benefit. A Writ Petition's pendency will not stand on the same footing always. If the time has not stopped running, then, none of the principles relied upon by the Petitioner will assist it. As we have noted above, in this case, Writ Petition was pending in this Court, but neit....