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Madhukar Sahakari Sakhar Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1986)(6)LC177Tri(Delhi)
AppellantMadhukar Sahakari Sakhar
RespondentCollector of Central Excise
Excerpt:
.....the provisions of section 14, the period that could be excluded in computing limitation for the appeal filed before the collector (appeals) would be between 12-11-79 to 29-12-79. he, therefore, contends that if the period 23-11-78 to 21-3-80 is taken into consideration and the period 12-11-79 to 20-12-79 is excluded therefrom, the balance would be still very much more than the period of limitation within which the appeal should have been filed and hence even applying section 14, the appeal against the order of the assistant collector preferred by the appellants would be seen to be very much beyond time.7. shri kohli contends that the period of limitation for filing the revision petition was one year from the date of the order of the assistant collector and the revision petition had.....
Judgment:
1. The appellants M/s. Madhukar Sahakan Sakhar Karkhana Ltd., filed a round claim on 19-8-78 which was rejected by the Assistant Collector, Nasik Division under his order dated 21-11-78; the same was received by the appellants on 23-11-78. They had Wed a revision petition to the Government of India against the said order on 12-11-79. Government, under letter dated 29-12-79 intimated the appellants that their remedy was to file an appeal against the order of the Assistant Collector to the concerned Appellate Collector of Central Excise and not by revision. Thereafter on 19-3-80, the appellants had preferred an appeal to the Appellate Collector which had been dismissed under order dated 15-7-80 on the ground that the appeal was barred by limitation. It is against the said order that the appellants had preferred a revision petition to the Government which, on transfer, is being dealt with and disposed of under this order as an appeal before this Tribunal.

2. We have heard Shri D.N. Kohli, Consultant for the appellants and Shri K.D. Tayal, SDR for the Respondent Collector.

3. The dates as mentioned earlier, are not in dispute. Since the order of the Assistant Collector had been received by the appellants on 23-11-78, and the appeal against the same (dated 19-3-1980) was received by the Collector of Central Excise (Appeals). On 21-3-80, the appeal was prima facie barred by limitation. But Shri Kohli contends that the appellants have been misled by the advice of their Advocate into preferring a revision petition to the Government against the order of the Assistant Collector and that the appellants ought not to be made to suffer for such incorrect advice given to them by their Advocate and that this would be a proper case for holding the appeal to have been filed in time. No doubt the fact that the party was misled by the advice which he had sought from a person who would be normally competent to give such advice, would be a proper ground to exercise discretion in favour of the said party against adverse consequences of following this advice. But so far as the appeal before the Appellate Collector (which ought to have been preferred against order of the Assistant Collector under the law as it then stood), there was no question of exercise of any discretion by him for condonation of any delay. In the circumstances the plea of Shri Kohli as earlier mentioned cannot be accepted.

4. Shri Kohli then contended that the appellants would be entitled to the benefit of Section 14 of the Limitation Act in excluding a certain period in computation of limitation for preferring the appeal and if that exclusion is allowed, appeal before the Appellate Collector would be found to have been filed within time.

"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, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or of appeal or revision against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908, the provisions of subsection (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature.

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted ; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding ; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

6. In considering the above argument, the following dates are relevant : the Assistant Collector 23-11-1978(2) Date when revision petition was filed 22-11-79(3) Date of return of the revision petition 29-12-79(4) Date when the appeal was received by Shri Tayal points out that under the provisions of Section 14, the period that could be excluded in computing limitation for the appeal filed before the Collector (Appeals) would be between 12-11-79 to 29-12-79. He, therefore, contends that if the period 23-11-78 to 21-3-80 is taken into consideration and the period 12-11-79 to 20-12-79 is excluded therefrom, the balance would be still very much more than the period of limitation within which the appeal should have been filed and hence even applying Section 14, the appeal against the order of the Assistant Collector preferred by the Appellants would be seen to be very much beyond time.

7. Shri Kohli contends that the period of limitation for filing the revision petition was one year from the date of the order of the Assistant Collector and the revision petition had been filed within that time and therefore the entire period from 23-11-78 to 29-12-79 should be excluded and if limitation is calculated from 29-12-79, the appeal before the Collector (Appeals) could be seen to have been filed within the period of limitation prescribed for filing appeals. But this argument is patently erroneous since there is no question of the appellants being entitled to a period of one year for preferring a revision petition to the Government against the order of the Assistant Collector since no such revision has been provided for in law.

Therefore for this reason, the argument of Shri Kohli as above mentioned is not acceptable.

8. Shri Kohli then contended that what should be excluded under Section 14 of the Limitation Act is not merely the period between 12-11-79 and 29-12-79 but that the period from 23-11-78 to 12-11-79 should also be excluded at least on the basis of the judgment of the Andhra Pradesh High Court in Tiruma Reddy v. State of Andhra Pradesh (AIR 1965 A.P.388). He pointed out that it has been held in the said decision that on the language of Section 14 there is no scope for limiting the ambit of Section 14 to pendency of infructuous proceeding in a Court of Law and to disregard time taken for taking all indispensable and preparatory steps to institute proceedings which ultimately prove to be fruitless.

He, therefore, contended that on the basis of the said observation, the entire period between 23-11-78 and 12-11-79 should also be excluded, under Section 14 apart from the period from 12-11-79 and 29-12-79.

9. In the present case we have already noted that the appellants had received a copy of the order of the Assistant Collector on 23-11-78.

They have filed a revision petition to the Government against the said order on 12-11-79 i.e. after expiry of nearly 11 1/2 months after receipt of the order. By no stretch of imagination could it be said that this time would have been required for "taking the indispensable and preparatory steps" to institute the revision petition. Therefore, even applying the ratio of the decision of the Andhra Pradesh High Court, that it is not only the period between 12-11-79 to 29-12-79 that should be excluded but also some period anterior thereto, we have no doubt whatever that the claim for exclusion of the entire period of 11 1/2 months above noted could never be accepted.

10. Shri Kohli contends that the order of Collector (Appeals) should be set aside on the very ground that the Collector had granted no personal hearing to the appellants before rejecting their appeal. We have seen that the appeal was patently barred by time. In the appeal filed before the Collector no reference had been made to any claim for the exclusion under Section 14 of the Limitation Act, the prayer made thereunder being only to condone the delay in filing the Appeal. As earlier noted, there was no provision for condonation of delay in the law as it stood at the relevant time. Therefore, we are not impressed with the argument that the order of the Collector (Appeals) should be set aside on the sole ground that it was not preceded by any personal hearing.

In view of the above discussion, we confirm the orders of the lower authorities and dismiss this appeal.


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