The Bombay High Court (Nagpur Bench) criticised the applicant for consuming judicial time by arguing the matter twice through different counsel and citing multiple judgments on points having no connection with the present case. Accordingly, the Court imposed costs of ₹5,000 for each application, as a consequence of this wastage of judicial time, and directed that the same be deposited within 15 working days with the Registry for payment to Uccha Nyayalay Chaturth Shreni Karmachari Sangh, Nagpur.
The Division Bench comprising Justice Anil L. Pansare and Justice Siddheshwar S. Thombre emphasized that the scope of Section 35-C(2) of the Central Excise Act, 1944, for rectifying apparent mistakes is altogether different from the scope of appeals under Section 35-G(2) involving substantial questions of law. Therefore, the applicant’s attempt to avail two remedies simultaneously – one through a rectification application under Section 35-C(2) and another through appeal under Section 35-G(2) – would not be permissible.
The Bench clarified that an applicant cannot simultaneously urge that there is an error apparent on the face of the record while also contending that the challenge involves substantial questions of law requiring a detailed hearing. The Bench found that the applicant was aware that they could file an appeal only after the rectification application was rejected, not pending the rectification application. Thus, allowing such a course would amount to permitting contrary stands while challenging the same order and could result in contrary views by two courts.
The Bench opined that the applicant was very well aware that the time limit for filing appeals commences from the date of rectification/review orders, not from the original order, and despite this knowledge, filed appeals while the rectification application remained pending.
The Bench rejected the applicant’s reliance on Section 14 of the Limitation Act, clarifying that this provision excludes limitation periods only when proceedings are pursued with due diligence and good faith in a court lacking jurisdiction or similar disability. Since the rectification proceedings were maintainable before the appellate tribunal, Section 14 benefits were not available.
Briefly, in this case, the applicant company had filed multiple civil applications seeking condonation of delay in filing appeals under Section 35-G(2)(a) of the Central Excise Act, 1944. Though the CESTAT had passed orders on February 22, 2022, which the applicant claimed to have received on March 3, 2022, and the 180-day limitation period was to expire on August 30, 2022, the appeals, however, were filed on February 27, 2023, creating a delay of 184 days that required condonation.
The applicant applied for rectification of mistake under Section 35-C(2) of the Central Excise Act on May 7, 2022, before the CESTAT and argued that since the rectification application was pending, they awaited its outcome, as allowing the rectification would render their entire grievance moot. The applicant contended that filing the appeal within 180 days of receiving the rectification order would constitute timely filing, and therefore, there was no undue delay. The respondent Department, however, countered that the rectification application.
Case Distinguished:
Vortex Engineering Works vs Union of India [2018 (362) E.L.T. 1029 (Bom.)]
Appearances:
Advocates Saurabh Malpani and Shreyas Agrawal, for the Applicant/ Taxpayer
Advocate Ketki Jaltare Vaidya, for the Respondent/ Department
