Whether the time limit for filing of appeal can be extended by the period of vacations or holidays?

PJ/Case Laws/2010-11/1110

Prepared By:
CA. Rajani Thanvi &
Arpita Birla

CASE:- M/S UTTAM SUCROTECH INTERNATIONAL (P) LTD. V/s UNION OF INDIS & ANR

Citation: 2011-TIOL-21-HC-DEL-CX

Issue:- Whether the time limit for filing of appeal can be extended by the period of vacations or holidays?

Brief Facts:-

The petitioner, a company incorporated under the Companies Act, 1956, is a merchant exporter and engaged in the export of various engineering goods under rule 19 of the Central Excise Rules, 2002. It had executed bond with the respondents for exporting the goods by purchasing manufactured excisable goods duty free on the basis of CT-1 issued from time to time by respondents. It had submitted necessary documents on 28.7.2004 and 19.10.2004 which had been scrutinized by the respondents and thereafter show cause notice no 6 dated 25.7.2005 and show cause notice no 9 dated 30.09.2005 had been served on the petitioner company. The petitioner explained all queries which were made in the aforesaid show cause notices in its replies dated 24.08.2005 & 04.1.2005 and made a prayer to the respondents to drop the proceedings and to withdraw the show cause notice.

Appellant’s Contention:-
Invoking the extraordinary and inherent jurisdiction of this Court under Articles 226 & 227 of the constitution of India, the petitioner has prayed for issue of a writ of certiorari for quashment of the order no. 137/10-CX dated 8.1.201 passed by the Joint Secretary of the Government of India, Ministry of Finance, whereby he has concurred with the order dated 8.6.2007 passed by the Commissioner, Customs & Central Excise.

It is submitted by learned counsel for the petitioner that the petitioner received the order passed by the adjudicating officer on 29^th August, 2006 and the right to prefer an Appeal under Section 35 of the Act was in subsistence for a period of 60 days and the said period expires only on 28^th October, 2006 which was a Saturday and, therefore, he was entitled to have the benefit of 28^th and 29^th October, 2006 being Saturday and Sunday and, therefore, the Commissioner of Appeal has erred in erred in computing the period of limitation.

Respondent’s Contention:-
Learned counsel for respondent submitted that the method of computation adopted by the Commissioner of Appeals cannot be faulted with as the memorandum of appeal was presented on 28^th November, 2006 which was a Tuesday. It is submitted by them that had it been filed on 27^th November, 2006 the benefit of Saturday & Sunday prior to the Monday, would have ensure to the benefit of the petitioner for the purpose of the computation of period of limitation does not conceive of and further such a method of computation is totally impermissible.

Reasoning of Judgment:-
Section 4 of the Limitation Act, 1963 and Section 10 of the General Clauses Act, 1897 enable a person to do what he could not have done on a holiday on the next working day. If the last day for filing an appeal expires on a holiday when a court is closed and the memorandum of appeal cannot be presented, it is obligatory on the part of the appellant to present the same day when the court reopens. The Commissioner as well as the revisional authority has correctly computed the period of limitation and appositely opined that the memorandum of appeal was presented on the 91^st day and hence, the Commissioner could not have condoned the delay even if sufficient on that score stands on terra firma.

Decision:-
Petition Dismissed with costs.
---------------------------------

Comments

PJ/Case Laws/2010-11/1110

Post a Comment

Query