Case Note & Summary
The judgment arises from two writ petitions filed under Article 226 of the Constitution of India before the Bombay High Court. The lead petition, WP No. 1830 of 2013, was filed by M/s. Flemingo (Duty Free Shop) Pvt. Ltd., a company operating duty-free shops at airports and seaports, challenging an order dated 27 December 2012 passed by the Commissioner of Customs (Appeals), Mumbai. The petitioner had been issued a demand of Rs.13,50,001/- as Merchant Over Time (MOT) charges by the customs authorities. Aggrieved by the original order dated 27 June 2011 confirming the demand, the petitioner initially filed a writ petition, WP No. 1705 of 2011, before the High Court. That petition was disposed of on 30 November 2011 with a direction to the petitioner to pursue the statutory remedy of appeal before the Commissioner (Appeals). The petitioner then filed an appeal on 12 December 2011 along with an application for condonation of delay of 108 days. The appellate authority dismissed the condonation application solely on the ground that under the proviso to Section 128(1) of the Customs Act, 1962, the maximum period for filing an appeal is 90 days (60 days plus a further extendable period of 30 days), and any delay beyond 90 days cannot be condoned. The petitioner contended that the period during which the earlier writ petition was pending (from 30 August 2011 to 30 November 2011) should be excluded under Section 14(2) of the Limitation Act, 1963, as the writ petition was prosecuted bona fide and on legal advice. The petitioner argued that if this period is excluded, the delay would be minimal and within the condonable limit. The appellate authority failed to consider this plea. The second writ petition, WP No. 3419 of 2014 by Sandvik Asia Private Limited, involved similar issues concerning a central excise appeal, though details were not elaborated in the judgment text. The High Court observed that the appellate authority had not applied its mind to the specific invocation of Section 14(2) of the Limitation Act and had erroneously limited its consideration to Section 5. The court noted the distinction between the concepts of 'period of limitation' and 'prescribed period' under Section 2(j) of the Limitation Act, and the applicability of Section 14(2) to special statutes. The judgment text provided ends before the final order, but from the submissions and observations, it was indicated that the writ petitions would be allowed and the matters remanded for fresh consideration of the condonation applications in light of Section 14(2).
Headnote
A) Limitation Law - Condonation of Delay - Exclusion of Time - Section 14(2) of Limitation Act, 1963; Section 128 of Customs Act, 1962 - The petitioner filed a writ petition challenging the original order, which was disposed of directing the petitioner to file a statutory appeal - The appeal was filed with a delay of 108 days, beyond the maximum condonable period of 90 days under Section 128(1) proviso - The petitioner contended that the time from filing of the writ petition (30-08-2011) to its disposal (30-11-2011) should be excluded under Section 14(2) - The appellate authority dismissed the condonation application without considering the applicability of Section 14(2) - The court observed that Section 14(2) operates to exclude time spent in proceedings prosecuted in good faith before a court without jurisdiction, and such exclusion is distinct from the power to condone delay under Section 5 - The appellate authority committed an error by not examining whether the conditions of Section 14(2) were satisfied (Paras 8-10)
Issue of Consideration
Whether the time spent in prosecuting a writ petition filed before the expiry of the statutory appeal period should be excluded under Section 14(2) of the Limitation Act, 1963, when computing delay in filing an appeal under Section 128 of the Customs Act, 1962.
Law Points
- Time spent in prosecuting a writ petition may be excluded under Section 14(2) of the Limitation Act
- 1963
- The terms 'period of limitation' defined in Section 2(j) and 'prescribed period' are distinct
- Section 14(2) applies to special and local laws
- Appellate authority must consider exclusion of time while computing delay under Section 128 of the Customs Act
- 1962
