Case Note & Summary
The Principal Commissioner of Central Excise & Customs, Daman Commissionerate, filed a Notice of Motion seeking condonation of a 2192-day delay in filing an appeal before the Bombay High Court. The appeal arose from a CESTAT order dated 2nd January 2009 and a rectification order dated 29th May 2009, which were received by the appellant on 28th January 2009 and 19th June 2009 respectively. The appellant initially filed an appeal under Section 35-G of the Central Excise Act, 1944 before the Gujarat High Court within the prescribed 180-day period. The Gujarat High Court admitted the appeal on 28th April 2011 but later, on 12th January 2015, held that it lacked territorial jurisdiction under Section 36(b) of the Act because the manufacturing unit was in Daman, a Union Territory. The court dismissed the appeal with liberty to approach the competent court. Consequently, the appellant filed the appeal before the Bombay High Court on 29th July 2015, resulting in a delay of 2192 days. The appellant sought condonation of this delay, relying on Section 14 of the Limitation Act, 1963, which allows exclusion of time spent in bona fide prosecution of a proceeding in a wrong court. The respondent opposed the condonation. The Bombay High Court, after hearing both sides, held that the appellant had acted with due diligence and bona fide in prosecuting the appeal before the Gujarat High Court, which was dismissed solely on jurisdictional grounds. The court applied Section 14 of the Limitation Act, 1963 to exclude the time spent before the Gujarat High Court, thereby condoning the delay. The court noted that the appellant had filed the appeal within the prescribed period before the Gujarat High Court and had pursued it diligently. The delay was not due to negligence or mala fides. The court allowed the Notice of Motion and condoned the delay, directing the appeal to be heard on merits.
Headnote
A) Limitation Act - Condonation of Delay - Section 14 - Exclusion of Time in Wrong Forum - The appellant filed an appeal under Section 35-G of the Central Excise Act, 1944 before the Gujarat High Court within 180 days, which was admitted and later dismissed for lack of territorial jurisdiction. The appellant then filed the appeal before the Bombay High Court with a delay of 2192 days. The Court held that the time spent in prosecuting the appeal before the Gujarat High Court with due diligence should be excluded under Section 14 of the Limitation Act, 1963, as the appellant acted bona fide in a wrong court. The delay was condoned. (Paras 1-6) B) Central Excise Act - Appeal - Section 35-G - Territorial Jurisdiction - Section 36(b) - The Gujarat High Court held that since the manufacturing unit was located in Daman, a Union Territory, it lacked territorial jurisdiction under Section 36(b) of the Central Excise Act, 1944, and dismissed the appeal with liberty to approach the competent court. (Paras 2-3)
Issue of Consideration
Whether the time spent by the appellant in prosecuting an appeal before the Gujarat High Court, which was dismissed for lack of territorial jurisdiction, should be excluded under Section 14 of the Limitation Act, 1963 for computing the limitation period for filing the appeal before the Bombay High Court.
Final Decision
The Bombay High Court allowed the Notice of Motion and condoned the delay of 2192 days. The court held that the time spent by the appellant in prosecuting the appeal before the Gujarat High Court with due diligence should be excluded under Section 14 of the Limitation Act, 1963, as the appellant acted bona fide in a wrong court. The appeal was directed to be heard on merits.
Law Points
- Section 14 of Limitation Act
- 1963
- Section 5 of Limitation Act
- Section 35-G of Central Excise Act
- 1944
- Section 36(b) of Central Excise Act
- Condonation of delay
- Due diligence
- Bona fide prosecution in wrong court
