Case Note & Summary
The petitioners, IVP Limited and another, filed a writ petition under Article 226 of the Constitution of India challenging an order dated 6 March 2009 passed by the Customs, Excise and Service Tax Appellate Tribunal (West Zonal Bench, Mumbai). The petitioners had made an application under Section 35C(2) of the Central Excise Act, 1944 for rectification of a final order dated 12 August 2004. The application was filed on 18 September 2008, along with a prayer for condonation of delay. The Tribunal rejected the application, holding that there is no provision in Section 35C(2) to condone delay and that Section 14 of the Limitation Act, 1963 cannot be invoked. The petitioners argued that the principles of Section 14 of the Limitation Act should apply, relying on the Supreme Court decision in M.P. Steel Corporation v. Commissioner of Central Excise (2015 (319) E.L.T. 373 (S.C.)). The respondents relied on a Division Bench decision of the Bombay High Court in Flemingo (Duty Free Shop) P. Ltd. v. Commissioner of Customs (Appeals), Mumbai. The High Court considered the issue and held that the principles analogous to Section 14 of the Limitation Act are applicable to rectification applications under Section 35C(2). The court set aside the impugned order and remanded the matter to the Tribunal for fresh consideration on merits after applying the principles of Section 14 of the Limitation Act.
Headnote
A) Central Excise - Rectification of Order - Section 35C(2) of Central Excise Act, 1944 - Limitation - The Appellate Tribunal held that there is no power to condone delay under Section 35C(2) and that Section 14 of the Limitation Act, 1963 cannot be invoked. The High Court, relying on M.P. Steel Corporation v. Commissioner of Central Excise, held that principles analogous to Section 14 of the Limitation Act are applicable. The impugned order was set aside and the matter remanded for fresh consideration on merits after applying the principles of Section 14. (Paras 1-5)
Issue of Consideration
Whether the Customs, Excise and Service Tax Appellate Tribunal can invoke the principles of Section 14 of the Limitation Act, 1963 to condone delay in filing a rectification application under Section 35C(2) of the Central Excise Act, 1944
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 6 March 2009, and remanded the matter to the Customs, Excise and Service Tax Appellate Tribunal for fresh consideration on merits after applying the principles of Section 14 of the Limitation Act, 1963.
Law Points
- Principles of Section 14 of Limitation Act
- 1963 applicable to rectification applications under Section 35C(2) of Central Excise Act
- 1944
- even though no express power to condone delay exists
Case Details
2017 LawText (BOM) (10) 100
WRIT PETITION NO.988 OF 2009
Mr. Prakash Shah a/w Mr. Jas Sanghvi i/by PDS Legal for the Petitioners, Mr. Pradeep S. Jetly for the Respondents
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging an order of the Customs, Excise and Service Tax Appellate Tribunal rejecting a rectification application under Section 35C(2) of the Central Excise Act, 1944 as barred by limitation.
Remedy Sought
The petitioners sought to set aside the Tribunal's order and to have their rectification application considered on merits after condonation of delay.
Filing Reason
The petitioners' rectification application under Section 35C(2) was filed beyond the six-month period prescribed after amendment by Act No.20 of 2002, and the Tribunal refused to condone the delay.
Previous Decisions
The Tribunal passed a final order on 12 August 2004. The petitioners filed a rectification application on 18 September 2008, which was rejected by the impugned order dated 6 March 2009 on the ground of limitation.
Issues
Whether the Appellate Tribunal has power to condone delay in filing a rectification application under Section 35C(2) of the Central Excise Act, 1944?
Whether the principles of Section 14 of the Limitation Act, 1963 can be invoked for condonation of delay in such applications?
Submissions/Arguments
Petitioners argued that the principles of Section 14 of the Limitation Act apply, relying on M.P. Steel Corporation v. Commissioner of Central Excise (2015 (319) E.L.T. 373 (S.C.)).
Respondents argued that there is no power to condone delay under Section 35C(2) and relied on Flemingo (Duty Free Shop) P. Ltd. v. Commissioner of Customs (Appeals), Mumbai.
Ratio Decidendi
The principles analogous to Section 14 of the Limitation Act, 1963 are applicable to rectification applications under Section 35C(2) of the Central Excise Act, 1944, even though the section does not expressly provide for condonation of delay. The Tribunal erred in holding that Section 14 cannot be invoked.
Judgment Excerpts
The question which is canvassed by the learned counsel appearing for the petitioners is about the power of the Appellate Tribunal to invoke Section 14 of the Limitation Act.
He submitted that the Apex Court has held that though by virtue of provisions of Section 29(2) of the Limitation Act, Section 14 per se will not apply, the principles governing Section 14 will certainly apply.
The learned counsel appearing for the respondent firstly relied upon a decision of the Division Bench of this Court in the case of Flemingo (Duty Free Shop) P. Ltd. Vs. Commissioner of Customs (Appeals), Mumbai.
Procedural History
The petitioners filed a rectification application under Section 35C(2) of the Central Excise Act, 1944 on 18 September 2008, seeking rectification of a final order dated 12 August 2004. The application was accompanied by a prayer for condonation of delay. The Customs, Excise and Service Tax Appellate Tribunal rejected the application by order dated 6 March 2009, holding that there is no power to condone delay under Section 35C(2) and that Section 14 of the Limitation Act cannot be invoked. The petitioners then filed the present writ petition under Article 226 of the Constitution of India.
Acts & Sections
- Central Excise Act, 1944: 35C(2)
- Limitation Act, 1963: 14, 29(2)
- Constitution of India: 226
