TaxTMI 
TaxTMI 
2002 (2) TMI 180
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the practice, the party was required to file three appeals. Apart from that the Commissioner (Appeals) has dismissed the appeals holding that the three appeals filed by the party before him were barred by time. He held that the maximum period of six months within which the appeal can be filed, but in all the three appeals delay in filing the claim is beyond condonable limits. Section 128 of the Customs Act 1962, is as under :- "SECTION 128. Appeals to [Commissioner (Appeals)] - (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 three months from the date of the Communication to him of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sioner (Appeals). Sh. Rajesh Chandra Kumar contended that in view of this position, there was no delay in filing the appeals and time consumed in the process is to be excluded applying the principle underlying Section 14 of the Limitation Act. He also drew our attention to Section 14 of the Limitation Act which is as under- "The Limitation Act, 1963 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 instance or of appeal or revision, against the defendant shall be excluded, wher....
X X X X Extracts X X X X
X X X X Extracts X X X X
....licant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) mis-joinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction." In support of his contention, he referred to the decision of Supreme Court in the case of P. Sarathy v. State Bank of India reported in AIR 2000 Supreme Court 2023, wherein it was held that Section 14 of the Limitation Act does not speak of a `Civil Court' but speaks only of a 'court'. If is not necessary that the Court spoken of in Section 14 should be a 'Civil Court'. Any authority of Tribunal having the trappings of a Court would be a 'Court' within the meaning of this section. He also referr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case law was brought to our notice that Section 14 of the Limitation Act is applicable to the special statute. In the case of Pasupathi Overseas Pvt. Ltd. referred to by the appellant's Counsel, it was held that the delay in filing the appeal could have been condoned by resort to principle underlying Section 14 of Limitation Act particularly when the Tribunal possesses power to condone the delay in filing the appeal. Clause 5 to Section 129 A is as under : "SECTION 129A. Appeals to the Appellate Tribunal…………… (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Act is made absolute without any right of appeal. The provisions of Section 35 therefore cannot be considered to be violative of any provision of the Constitution of India. Once this conclusion is arrived at, this Court while exercising the power under Article 226 cannot direct to act contrary to the statutory provision or declare them unconstitutional. Since the statute itself has provided a limitation, the right has to be exercised within that period." Similar view was expressed by Andhra Pradesh Court in the case of Shanthi Alloys Pvt. Ltd. v. CCE, Hyderabad reported in 1999 (109) E.L.T. 79 and the order in brief is as under : "Delay in filing appeal beyond 90 days not condonable in view of specific provision of Proviso to Sec....