TaxTMI 
TaxTMI 
TaxTMI 
2014 (9) TMI 975
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....nts taking assessable value as 40% of the London Metal Exchange (LME) which was considered in case of material without metallic contents and in case of metallic contents, value was further loaded as per formula (Annexure P-1) laid down by the Commissioner of Customs, Nhava Sheva. Various importers filed CWP No. 6292 of 2010 before this Court against the parameters laid by the respondents. This Court vide order dated 7-4-2010 (Annexure P-2) disposed of the writ petition and directed the Chief Commissioner, Central Excise and Customs to look into the matter and take a decision thereon in accordance with law. In pursuance of the order passed by this Court, the Chief Commissioner vide order dated 7-5-2010 (Annexure P-4) approved the formula. The Commissioner (Appeals) also upheld the application of formula. The Commissioner (Appeals) vide order dated 15-1-2010 (Annexure P-3) upheld the assessment order passed by the adjudicating authority. The importers filed CWP Nos. 9146-52 of 2010 for quashing of the assessment order dated 15-1-2010 (Annexure P-3) and order dated 7-4-2010 (Annexure P-4) passed by the Chief Commissioner. This Court vide order dated 1-12-2010 [2012 (276) E.L.T. 459 (P....
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....sessed the value applying the formula. However, the petitioner paid short duty amounting to Rs. 15,693/-. The petitioner filed amended writ petition seeking quashing of the order dated 16-7-2013 (Annexure P-11). Since the said order was appealable, this Court vide order dated 31-10-2013 (Annexure P-12) [2014 (300) E.L.T. 165 (P&H)] disposed of the writ petition and relegated the petitioner to the remedy of appeal. It was further observed that in case the appeal was barred by limitation, the application of the petitioner shall be considered sympathetically taking into consideration pendency of the writ petition and the appeal shall be decided on merits. The application for condonation of delay was directed to be decided within 15 days of its filing. Thereafter, the petitioner filed an appeal along with application for condonation of delay pleading for exclusion of time in terms of Section 14 of Limitation Act, 1963 (in short "the 1963 Act") before respondent No. 4 against the order dated 16-7-2013 (Annexure P-11). The Commissioner (Appeals) vide order dated 27-11-2013 (Annexure P-14) dismissed the application for condonation of delay as well as the main appeal. Hence, the present wr....
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....ituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction." "29(2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law." 5. The following conditions have to be satisfied for taking benefit of Section 14 of the 1963 Act :- "(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecu....
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.... special law excluded their operation." 8. The 1962 Act is a Special Statute. Under Section 128(1) by the said Act, remedy of appeal has been provided as under :- "128(1). Any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days." 9. We have to see the scheme of the special law under the 1962 Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. The 1962 Act is an independent Act as from perusal of various chapters and sections thereof, it is clear that it provides for search, seizure, arrest, confiscation of goods, conveyance, imposition of penalties, settlement of cases, appeals in....
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....8 of the 1962 Act. It was recorded as under :- "The provisions of Section 29 of the Limitation Act, 1963 are clear and also covered by the Authority of decision in Mangu Ram v. Municipal Corporation of Delhi - AIR 1976 SC 105. According to it unless application of Section 14 of the said Act is expressly excluded by a special law, it shall be applied to the special law. The Supreme Court was of the view in the Commissioner of Sales Tax, Uttar Pradesh v. Parson Tools and Plates, Kanpur - AIR 1975 SC 1039, that there are three features in the scheme of Act which unmistakingly go to show that the legislature had deliberately excluded the application of Sections 5 and 14 of Limitation Act - (i) no limitation has been prescribed for suo motu exercise of its jurisdiction by the Revising Authority, (ii) Period of one year prescribed as limitation in filing revision application is unnecessarily long; and (iii) Revising Authority has no discretion to extend this period beyond a period of six months, even on sufficient cause. The only point, therefore, for consideration is whether there is anything in Section 128 of the Customs Act, 1962, which expressly excluded the applicability of Sectio....
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....hing and 'Extension of prescribed period in certain cases under Section 5 of 1963 Act is another. Two things cannot be equated as similar. Further, there is fundamental distinction between the discretion to be exercised under Section 5 of the 1963 Act and exclusion of the time provided in Section 14 of the said Act. The power to excuse delay and grant an extension of time under Section 5 is discretionary whereas under Section 14, exclusion of time is mandatory, if the requisite conditions are satisfied. Section 5 is broader in its sweep, than Section 14 in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal or the application within time. The ingredients in respect of Sections 5 and 14 are different. The effect of Section 14 is that in order to ascertain what is the date of expiration of the 'prescribed period', the days spent in prosecuting the prior proceedings before wrong forum with due diligence, have to be added to what is primarily the period of limitation prescribed. There being distinction between applicability of provisions of Sections 5 and 14 of 1963 Act as they operate in d....
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....e a "Court" within the meaning of this Article." 15. Following the aforesaid pronouncement, Karnataka High Court in HMT Ltd. v. Commissioner of Customs, Chennai, 2009 (239) E.L.T. 239 had expressed similar view. 16. Further, Single Judge of this Court in Pritam Kaur v. Sher Singh, AIR 1983 Punjab 363 had opined in the same manner as under :- "...Thus, for all intents and purposes the Collector under the Act will be deemed to be the Court while deciding the dispute as contemplated under the Act. The Court contemplated under Section 14 of the Limitation Act does not necessarily mean the Civil Court under the Civil Procedure Code. Any Tribunal or Authority deciding the civil rights of the parties will be deemed to be a Court for that purpose. In Bhupendra Singh v. Thakur Gulab Singh, AIR 1966 Rajasthan 92, it has been observed in para 9 thereof that the word 'Court' used in that section must be construed liberally. The contention of the Counsel in that case was that the Court of Wards was not a Court within the meaning of Section 14 of the Act which was repelled. Similarly, in Ramdutt Ramkessen Dass v. E.D. Sasson & Co., AIR 1929 Privy Council 103, it was held that in the....
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.... Marakkar and Others, AIR 1978 Kerala 161 and Sheetal Enterprises v. UOI - 2008 (11) S.T.R. 219 (Bom.) = 2006 (206) E.L.T. 1091 (Bom.) to contend that the Commissioner (Appeals) would not be 'Court' within the provisions of Section 14 of the 1963 Act. Suffice it to notice, in view of the authoritative and binding pronouncement of the Apex Court in P. Sarathy's case (supra), the same would not come to the rescue of the respondents. 19. We now advert to the decision of Three Judges Bench of the Apex Court in Commissioner of Sales Tax, UP v. M/s. Parson Tools and Plants, AIR 1975 SC 1039 on which main reliance was placed upon by learned Counsel for the respondents. In M/s. Parson Tools and Plants' case (supra), two assessment orders had been made under the provisions of UP Sales Tax Act, 1948. On May 10, 1963, the appeals filed against the same came up for hearing and the same were dismissed in default under Rule 68(5) of the UP Sales Tax Rules as no one had appeared on behalf of the assessee. However, sub-rule (6) of Rule 68 of that Rule provided for setting aside such dismissal and readmission of the appeal. Two applications were filed by the assessee for setting aside the dis....
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.... Pradesh (supra) was "whether under the circumstances of the case, Section 14 of the Limitation Act extended the period for filing of the revisions by the time during which the restoration application remained pending as being prosecuted bona fide. In the said case, Sales-Tax Officer had made two assessment orders. The assessee had filed appeals before the Appellate Authority. The appeals were dismissed in default as the assessee did not remain present on the specified date. The assessee filed two applications for setting aside such dismissal under Rule 68(6) of the U.P. Sales Tax Rules. During the pendency of the application a Single Judge of Allahabad High Court declared Rule 68(5) of the Rules ultra vires under which the appeals were dismissed for default. In view of the ruling of High Court, the Appellate Authority dismissed the appeals. The assessee, therefore, filed two revision petitions. They were filed more than 18 months after the dismissal of the appeals. The revisions were accompanied by two applications in which the assessee had prayed for exclusion of time spent by him in presenting the aborting proceedings under Rule 68(6) for setting aside the dismissal of his appea....