2016 (5) TMI 382

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....n case for this judgment; the others will follow suit. 2. The present Appeal arises from an order dated 2nd January 2009 passed by the Customs, Excise & Service Tax Appellate Tribunal ("CESTAT"), West Zonal Bench, Ahmedabad and the CESTAT's subsequent order dated 29th May 2009 in a rectification of mistake application by the present Appellants. We are not in this Notice of Motion examining the merits of the present Appeal. We only note that the CESTAT order-in-appeal was passed in a proceeding that emanated from an Order-in-Original dated 10th January 2008 passed by the Joint Commissioner, Central Excise and Customs, Daman and a subsequent order dated 30th July 2008 passed by the Commissioner (Appeals), Central Excise & Customs, Daman. 3.....

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....r expiry of a period of 180 days, if it is satisfied that there is sufficient cause for not filing the Appeal within the prescribed period. This provision is in consonance with the provisions of Section 5 of the Limitation Act, 1963. However, for our purposes, Section 14 of the Limitation Act, 1963 is more apposite. In terms, this Section says 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 appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or simila....

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.... of Central Excise. 2015 (319) E.L.T. 373 (S.C.) In that case, one of the questions was whether the Limitation Act, 1963 applied only to Courts and not to Tribunals, for the appeal in question in that case was before the tribunal. The Supreme Court noted the decision of the Supreme Court in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department (2008) 7 SCC 169 and in particular the five conditions that are set out in paragraph 21 of that decision for the correct invocation and application of Section 14 of the Limitation Act. These five conditions are by now well settled. Both the prior and subsequent proceedings must be civil proceedings prosecuted by same party; the prior proceeding should have been prosecuted ....

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.... a "Court". The only question was one of lack of territorial jurisdiction. There is also no dispute that the Appeal before the Gujarat High Court was in fact filed in time. The entire period, therefore, from the time of filing of the Appeal in the Gujarat High Court till its disposal as above by that Court must, in our view, be fairly excluded for the purposes of limitation. If that is not done, great injustice and unfairness will result. The direction of that High Court, with respect, is that the papers in each of these Appeals be returned to the respective Appellants / their Advocates for presentation to the Competent Appellate Court, which is this Court. 8. For the purposes, therefore, of computing the delay to be condoned, if any, we m....