TaxTMI 
TaxTMI 
2026 (2) TMI 123
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....ected on the ground of being time barred." 2.1 On the last date i.e. 06.01.2026, matter was adjourned for today on the request of learned Counsel with the following observations:- "Learned Counsel appearing for the appellant wants to submit her Vakalatnama in the matter. Further, she submits that the matter may be taken up after one week for final hearing. 2.0 In view of the request made, matter is adjourned to 15.01.2026 for final hearing." 2.2 From the above, it is clear that the matter was fixed for final hearing with the consent of Counsel but see fails to appear today i.e. 15.01.2026. I also note that matter was adjourned either on account of non presence of the counsel or on the request of counsel on 29.09.2025, 06.11.2025, 28.11.2025 and on 06.01.2026. The matter was fixed for hearing after seeking the convenience of counsel and on assurance of presence today. I also note that proviso to Section 35C (1A) restricts the total number of exemptions that could be granted to either side in appeal to three. Thus I do not find any reason to further adjourn this matter in absence of any request. 2.3 I proceed to decide the appeal after hearing Shri Santosh ....
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.... "35. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as 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. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner." 7. It is to be noted that the periods "sixty days" and "thirty days" have been substituted for "within three months" and "three months" by Act 14 of 2001, with effect from 11-5-2001. 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the ....
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.... appeal. If that is so, the plea that because of lack of experience in business there was delay does not stand to be reason. I.T.C.'s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs." 3.4 Hon'ble Supreme Court in the case of M/s Raj Kumar Shivhare 2010 (253) ELT 3 (SC) have held as follows:- "24. The word 'any' in this context would mean 'all'. We are of this opinion in view of the fact that this Section confers a right of appeal on any person aggrieved. A right of appeal, it is well settled, is a creature of Statute. It is never an inherent right, like that of filing a suit. A right of filing a suit, unless it is barred by Statute, as it is barred here under Section 34 of FEMA, is an inherent right (See Section....
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.... "employed to indicate all and every as well as some or one and its meaning in a given Statute depends upon the context and subject matter of Statute". The aforesaid meaning given to the word 'any' has been accepted by this Court in Lucknow Development Authority v. M.K. Gupta [(AIR) 1994 SC 787]. While construing the expression "service of any description" under Section 2(o) of Consumer Protection Act, 1986 this Court held that the meaning of the word 'any' depends upon the context and the subject matter of the Statute and held that the word 'any' in Section 2(o) has been used in wider sense extending from one to all (para 4 at page 793 of the report) . In the instant case also when a right is conferred on a person aggrieved to file appeal from 'any' order or decision of the Tribunal, there is no reason, in the absence of a contrary statutory intent, to give it a restricted meaning. 29. Therefore, in our judgment in Section 35 of FEMA, any 'order' or 'decision' of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal and all such decisions or orders are, subject to limitation, appealable to the High Court on a question of law. 30. In ....
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...., Hon'ble Allahabad High Court in the case of Mr. Neeraj Jhanji Vs CC & CCE 2013 (296) ELT 310 (All.) have held as follows:- "12. It is further submitted by Shri Kesarwani that although the Delhi High Court permitted the appellant to withdraw the appeal on 5-1-2012, the appeal was filed with a further delay of about 20 days on 25-1-2012. The appeal is reported to be delayed by 1 year and 332 days for which the appellant is not entitled to take benefit of Section 14 of the Limitation Act. Shri Kesarwani submits that the appellant was not bonafidely pursuing the remedies with due diligence in the wrong Court. He and his counsels were fully aware that the Delhi High Court does not have jurisdiction in the matter. An objection was taken as early as on 22-9-2010. It was open to the appellant assisted by expert counsels to withdraw the appeal for filing appeal before the competent jurisdictional High Court. The appellant delayed the matter for 1 year and 4 months, to take advantage of the interim order passed by the Delhi High Court. Further there are no bona fides pleaded by the appellant in pursuing the remedy at Delhi. All that he has stated in his application for condonation....
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....id not have territorial jurisdiction, as in accordance with the Suresh Desai and Associates (supra) and Ambica Industries (supra), it should have refrained to make any observations in favour of the appellant. 15.In Rabindra Nath Samuel Dawson v. Sivakasi & Ors. - (1973) 3 SCC 381 the Supreme Court held that where the objection to maintain the previous suit was taken at the very initial stage, benefit of Section 14 of the Limitation Act is not available to the person. 16. In Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department & Ors. - (2008) 7 SCC 169 the Supreme Court considered the scope of Section 14 of the Limitation Act and held in paragraphs 21 and 22 as follows :- Section 14 of "21. the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service : (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good....
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....y doing his best to get his case tried on merits but failed because the Court was unable to give him such a trial. The Court will condone the delay, if the litigious activity was bona fide, as the equity underline Section 14 should be applied to its fullest extent. The position, however, would be otherwise, where a person is not bonafidely pursuing the remedy in the wrong Court. In this case the appellant assisted and advised by the counsels expert in the subject first filed a writ petition, which he requested to be converted into appeal. He was granted an interim order for which he sought extension of time to deposit the amount. On 22nd September, 2010 an objection was taken by the department that the appeal does not lie in the Delhi High Court in view of the Ambica Industries case (supra). It was open to the appellant to withdraw the appeal and to approach the Allahabad High Court. The counsels, however, took time to look into the aspects and thereafter took one year and three months, during which they went on getting the appeal adjourned to withdraw the appeal. They did not contest the matter and meekly surrendered, after having enjoyed the benefit of stay order for more than on....
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.... matter till date." (emphasis supplied) 20.In Ketan V. Parekh v. Special Director, Directorate of Enforcement - 2012 (275) E.L.T. 3 (S.C.) = 2012 (28) S.T.R. 195 (S.C.) the Supreme Court held in Paras 21 to 25 as follows :- The aforesaid three judgments do support the argument of "21. Shri Ranjit Kumar that even though Section 5 of the Limitation Act cannot be invoked for condonation of delay in filing an appeal under the Act because that would tantamount to amendment of the legislative mandate by which special period of limitation has been prescribed, Section 14 can be invoked in an appropriate case for exclusion of the time during which the aggrieved person may have prosecuted with due diligence remedy before a wrong forum, but on a careful scrutiny of the record of these cases, we are satisfied that Section 14 of the Limitation Act cannot be relied upon for exclusion of the period during which the writ petitions filed by the appellants remained pending before the Delhi High Court. In the applications filed by them before the Bombay High Court, the appellants had sought condonation of 1056 days' delay by stating that after receiving copy of the order pa....
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....petition cannot be entertained by this Court. It is, however, open to the Appellant's to avail of the appropriate remedy in terms of para 45 of the above judgment of the Supreme Court. Hence, pursuant to the said 3.3 order passed by Hon'ble Delhi High Court the Appellant above named prefers an appeal before this Hon'ble Bombay High Court. Under the said circumstances the Appellant most humbly prays 3.4 that this Hon'ble Court may be pleased to condone the delay. It is submitted that the delay, in filing of the present 3.5 Appeal has not prejudiced the Respondent in any manner, whatsoever, and, therefore, this Hon'ble Court be pleased to condone the said delay. It is, further submitted that the delay of 1056 days in 3.6 filing the present Appeal was bona fide, unintentional and inadvertent. A careful reading of the above reproduced averments shows 22. that there was not even a whisper in the applications field by the appellants that they had been prosecuting remedy before a wrong forum, i.e. the Delhi High Court with due diligence and in good faith. Not only this, the prayer made in the applications was for condonation of 1056 days' delay....
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.... it was observed that the parties cannot be allowed to indulge in forum shopping. It has not at all surprised us that after having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance of the direction given by the Appellate Tribunal and, by no stretch of imagination, it can be said that they were bona fide prosecuting remedy before a wrong forum. Rather, there was total absence of good faith, which is sine qua non for invoking Section 14 of the Limitation Act. The issue deserves to be considered from another angle. By 24. taking advantage of the liberty given by the learned Single Judge of the Delhi High Court, the appellants invoked the jurisdiction of the Bombay High Court under Section 35 of the Act. However, while doing so, they violated the time limit sp....
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....ecorded as follows:- "5. The very filing of writ petition by the petitioner in Delhi High Court against the order-in-original passed by the Commissioner of Customs, Kanpur indicates that the petitioner took chance in approaching the High Court at Delhi which had no territorial jurisdiction in the matter. We are satisfied that filing of the writ petition or for that appeal before Delhi High Court was not at all bona fide. We are in agreement with the observations made by the Allahabad High Court in the impugned order. The Allahabad High Court has rightly dismissed the petitioner's application of condonation of delay and consequently the appeal as time-barred." 3.5 Further, Hon'ble Supreme Court in the case of M/s Glaxo Smith Kline Consumer Health Care Ltd. 2020 (36) GSTL 305 (SC) have held as follows:- "15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. (supra), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. v. Union of India & Ors. [AIR 2015 Guj 97 = 2015 (326) E.L.T. 532 (Guj.)] and also of the Karnataka High Court in P....
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....aph) of this decision, however, the Court plainly noted that it was not necessary to express any final opinion on the question as to whether Section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947) is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for under Article 226 of the Constitution. 17. Reliance was then placed on a three-Judge Bench decision of this Court in ITC Ltd. & Anr. v. Union of India [(1998) 8 SCC 610 = 1998 (101) E.L.T. 9 (S.C.)]. In that case, the High Court had dismissed the writ petition on the ground that the petitioner therein had an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Concededly, this Court was pleased to uphold that opinion of the High Court. However, whilst considering the difficulty expressed by the petitioner therein that the statutory remedy of appeal had now become time barred during the pendency of the proceedings before the High Court and before this Court, the Court permitted the petitioner therein to resort to remedy of statutory appeal and directed the appellate autho....
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....ld become a case of violation of fundamental right, much less statutory or legal right as such. 19. Arguendo, reverting to the factual matrix of the present case, it is noticed that the respondent had asserted that it was not aware about the passing of assessment order dated 21-6-2017 although it is admitted that the same was served on the authorised representative of the respondent on 22-6-2017. The date on which the respondent became aware about the order is not expressly stated either in the application for condonation of delay filed before the appellate authority, the affidavit filed in support of the said application or for that matter, in the memo of writ petition. On the other hand, it is seen that the amount equivalent to 12.5% of the tax amount came to be deposited on 12-9-2017 for and on behalf of respondent, without filing an appeal and without any demur - after the expiry of statutory period of maximum 60 days, prescribed under Section 31 of the 2005 Act. Not only that, the respondent filed a formal application under Rule 60 of the 2005 Rules on 8-5-2018 and pursued the same in appeal, which was rejected on 17-8-2018. Furthermore, the appeal in question against....
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....y the respondent only on 24-9-2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all." 3.6 In case of Pathapati Subba Reddy (Died) By L.Rs. & Ors. [Order dated 08.04.2024 in Special Leave Petition (Civil) No. 31248 Of 2018] after considering the past precedence Hon'ble Supreme Court has held as follows: 26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial just....