Bombay High Court
Sanvijay Rolling And Engineering Ltd., ... vs Commissioner Of Cgst And Central ... on 12 September, 2025
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
2025:BHC-NAG:9070-DB
1 cat 12.2023+13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Civil Application (CAT) No. 12 of 2023
in
Central Excise Appeal St. No. 4949 of 2023
with
Civil Application (CAT) No. 7 of 2023
in
Central Excise Appeal St. No. 4804 of 2023
with
Civil Application (CAT) No. 10 of 2023
in
Central Excise Appeal St. No. 4905 of 2023
with
Civil Application (CAT) No. 8 of 2023
in
Central Excise Appeal St. No. 4221 of 2023
with
Civil Application (CAT) No. 11 of 2023
in
Central Excise Appeal St. No. 4522 of 2023
with
Civil Application (CAT) No. 20 of 2023
in
Central Excise Appeal St. No. 4812 of 2023
with
Civil Application (CAT) No. 6 of 2023
in
Central Excise Appeal St. No. 4512 of 2023
with
Civil Application (CAT) No. 15 of 2023
in
Central Excise Appeal St. No. 4525 of 2023
with
Civil Application (CAT) No. 13 of 2023
in
Central Excise Appeal St. No. 4549 of 2023
with
Civil Application (CAT) No. 21 of 2023
in
Central Excise Appeal St. No. 4754 of 2023
with
Civil Application (CAT) No. 9 of 2023
in
Central Excise Appeal St. No. 4547 of 2023
with
Civil Application (CAT) No. 14 of 2023
in
Central Excise Appeal St. No. 4657 of 2023
with
2 cat 12.2023+13
Civil Application (CAT) No. 18 of 2023
in
Central Excise Appeal St. No. 4551 of 2023
with
Civil Application (CAT) No. 16 of 2023
in
Central Excise Appeal St. No. 4555 of 2023
[Sanvijay Rolling and Engineering Ltd., Hingna Road, Nagpur through its authorised signatory
vs. Commissioner of CGST and Central Excise, Nagpur -1]
--------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------------------ - -
Mr. Saurabh Malpani, Advocate instructed by Mr. Shreyas Agrawal,
Advocate for the applicant/appellant
Mrs. Ketki Jaltare Vaidya, Advocate for the respondent
CORAM: ANIL L. PANSARE AND
SIDDHESHWAR S. THOMBRE, JJ.
DATED : 12-09-2025.
In all these applications, a common question is
involved, which is, whether the applicant has shown sufficient
cause to condone delay, in filing appeal under Section
35-G(2)(a) of the Central Excise Act, 1944 (hereinafter referred
to as 'the Act of 1944').
2. For the purpose of convenience, facts of Civil
Application (CAT) No. 12/2023 are being considered.
3. Sub-section (2) of Section 35-G provides that the party
aggrieved by an order passed by the appellate tribunal may file
appeal to the High Court within a period of 180 days from the
date on which the order appealed against is received by the
aggrieved party. Sub-section (2a) provides that the High Court
may admit the appeal after the expiry of 180 days, if it is
satisfied that there was sufficient cause for not filing the same
within that period.
4. Thus, the only question that requires answer is
whether the applicant has shown sufficient cause for not filing
appeal within 180 days from the date of receipt of the
3 cat 12.2023+13
impugned order. Admittedly, the appellate tribunal has passed
order on 22-2-2022. The applicant claims that the order was
received on 3-3-2022. According to the applicant, 180 days
period was to expire on 30-8-2022. The appeal has been filed
on or about 27-2-2023 and accordingly, delay of 184 days is
sought to be condoned.
5. It appears that in the meantime i.e. on 7-5-2022, the
applicant had filed application for rectification of mistake under
Section 35-C(2) of the Act of 1944 before the appellate tribunal
seeking rectification of the impugned order. The application
was pending at the time of filing present appeal. According to
the applicant, if appellate tribunal would have allowed the
application for rectification of mistake, then the entire
grievance does not survive. Accordingly, applicant awaited
outcome of the said application. The appeal under question is
being filed before disposal of the said application. Therefore, it
is being filed within 180 days of receipt of the order that would
be passed in rectification application. According to the
applicant, there is thus no undue delay in filing present appeal,
if the date of receipt of the order in rectification application is
considered as relevant date. Accordingly, it is argued that there
is no delay in filing appeal.
6. The respondent, through reply, submitted that
rectification application was preferred on 17-5-2022 and, order
thereon was passed on 11-8-2023 and, therefore, filing appeal
in the intervening period i.e. in February, 2023 was not
maintainable at all. Learned counsel for the respondent
submits that the law is well settled on this point that the period
of limitation for challenging the final order, in the present case,
the order dated 22-2-2022 shall start from the date of rejection
of rectification application i.e. from 11-8-2023. The counsel for
respondent submitted that the appellant is well aware of the
4 cat 12.2023+13
said position of law and, therefore, has pleaded in paragraph
no. 7 of the application that the date of order that will be
passed in rectification application is a relevant date and,
therefore, the appeal that is being filed prior to decision in
rectification application will be within the prescribed period.
7. Thus, what transpires is that the applicant intends to
avail two remedies simultaneously. One through application
under Section 35-C(2) of the Act of 1944 seeking rectification
in the impugned order and the other under Section 35-G(2) of
the Act of 1944 by filing appeal. Such a course, as adopted by
the applicant, in our view, is not permissible. The scope of
Section 35-C(2) is altogether different than the scope of appeal
under Section 35-G(2). Under Section 35-C(2), the appellate
tribunal is empowered to rectify any mistake apparent from the
record and accordingly amend any order passed by it under
sub-section (1) of Section 35-C. As against, the appeal under
Section 35-G is maintainable before the High Court, if it is
satisfied that the case involves a substantial question of law.
Thus, it is for the petitioner to make up mind whether there is
mistake apparent on the face of the record or whether the
challenge to impugned order involves substantial question of
law which would require detailed hearing. Thus, the applicant
cannot simultaneously urge that there is error apparent on the
face of record in the order passed by appellate tribunal and at
the same time, urge that there involves substantial question of
law in a challenge against impugned order. In other words, if it
was the case of the applicant that there occurred apparent error
on the face of record, he could not have urged for detailed
hearing and vice versa.
8. In the present case, the applicant filed application for
rectification of mistake and pending it, he filed appeal under
Section 35-G(2). Further, the applicant was aware that he
5 cat 12.2023+13
could have filed appeal only after the rectification application is
rejected. In other words, he could not have filed appeal
pending rectification application. It is so because the applicant
himself has come up with a case that if rectification application
is allowed, then nothing survives in the matter. Thus, unless
the rectification application was decided, the applicant could
not have filed appeal which if permitted will amount to
allowing taking two contrary stands while challenging the same
order. Further, such course, if permitted, may result in taking
contrary views by two courts.
9. It is for this reason that on 8-8-2025, after having
heard the matter for some time, we had indicated that the
applicant is not entitled for any relief. The counsel, who argued
the matter, however, sought time to have research on the point.
He was put to notice that further wastage of time will attract
costs. However, on the next date, Mr. V. Sridharan, learned
Senior Counsel appeared for the applicant and argued the
matter. According to him, the time spent before wrong forum
should be excluded while condoning delay in terms of Section
14 of the Limitation Act, 1963. In support, he has relied upon
as many as nine judgments enlisted below.
(1) M. P. Steel Corporation Vs. Commission of Central Excise
[2015 (319) E.L.T. 373 (S.C.)],
(2) R. B. Ramlingam Vs. R. B. Bhvaneswari [(2009) 2 SCC 689] ,
(3) Resorts Consortium India Limited Vs. ITAT, SMC-1 Delhi
Bench and ors. [High Court of Delhi] order dated 7-11-2023
in ITA 425/2023 & CM APPL. 45878/2023,
(4) Commissioner of Customs Vs. VVF (India) Ltd. [2017 (348)
E.L.T. 624 (Guj.)],
(5) Team Global Logistics Pvt. Ltd. Vs. Commissioner of S.T.-V
[2019 (22) G.S.T.L. 342 (Bom.)],
6 cat 12.2023+13
(6) Bhivchandra Shankar More Vs. Balu Gangaram More and
ors. [(2019) 6 SCC 387],
(7) N. S. Bohra Vs. Suresh Kumar Hawa and ors. [2000 SCC
OnLine Raj 401],
(8) H. L. Malhotra & Co. (P) Ltd. Vs. Deputy Commissioner of
Income Tax {[2021] 125 taxmann.com 70 (Delhi)},
(9) Tvl. SKL Exports Vs. Deputy Commissioner (ST) (GST)
(Appeal), Erode & Salem [Order of High Court at Madras
dated 14-3-2024 in WP Nos. 6825,6828 & 6829 of 2024] .
The law is well settled on this count. Section 14 of the
Limitation Act carves out an exception excluding the period of
limitation when the proceedings are being perceived with due
diligence and good faith in a Court which from defect of
jurisdiction or other cause of a like nature is unable to entertain
it. This is what has been reiterated in above judgments.
10. We wonder why so many judgments are relied upon
by the Senior Counsel, firstly, when a single judgment could
have served the purpose so far as position of law is concerned.
Secondly and most importantly, when it is not the case of the
applicant, as cannot be, that proceedings under Section 35-C(2)
were not maintainable before the appellate Court or that the
applicant had perceived remedy before the wrong Court. That
being so, the benefit under Section 14 of the Limitation Act is
not available to the applicant. The judgments so relied,
therefore, will be of no assistance.
11. Another limb of argument, at the hands of learned
Senior Counsel is that liberal approach should be adopted while
condoning delay. In support, he has relied upon following three
judgments.
7 cat 12.2023+13
(1) Collector, Land Acquisition Anantnag and another Vs. Mst.
Katiji and others [1987 (28) E.L.T. 185 (S.C.)],
(2) A. B. Govardhan Vs. P. Ragothaman [(2024) 10 SCC 613]
and
(3) Suresh Kumar Vs. State of Haryana and ors. (Supreme
Court) in Civil Appeal No. /2025 (arising out of SLP ©)
NO. 670/2020) dated 23-4-2025.
Again, the principle is well settled viz. the liberal approach
should be adopted for condoning delay. Equally, well settled
principle of law is that the delay could be condoned, by
imposing any condition whatsoever.
12. The Supreme Court in the case of Basawaraj and
another Vs. Special Land Acquisition Officer [(2013) 14 SCC
81] held thus :-
"15. The law on the issue can be summarised to the
effect that where a case has been presented in the court
beyond limitation, the applicant has to explain the court
as to what was the "sufficient cause" which means an
adequate and enough reason which prevented him to
approach the court within limitation. In case a party is
found to be negligent, or for want of bona fide on his part
in the facts and circumstances of the case, or found to
have not acted diligently or remained inactive, there
cannot be a justified ground to condone the delay. No
court could be justified in condoning such an inordinate
delay by imposing any condition whatsoever. The
application is to be decided only within the parameters
laid down by this Court in regard to the condonation of
delay. In case there was no sufficient cause to prevent a
litigant to approach the court on time condoning the delay
without any justification, putting any condition
whatsoever, amounts to passing an order in violation of
the statutory provisions and it tantamounts to showing
utter disregard to the legislature."
8 cat 12.2023+13
Thus, the Supreme Court held that in case there was no
sufficient cause to prevent a litigant to approach the court on
time condoning the delay without any justification, putting any
condition whatsoever, amounts to passing an order in violation
of the statutory provisions and it tantamounts to showing utter
disregard to the legislature. Even otherwise, the issue of
limitation would have arisen only after receiving order in the
proceedings under Section 35-C(2). The applicant, however,
filed appeal in the intervening period, that too, without seeking
withdrawal of application filed under Section 35-C(2) of the Act
of 1944. The judgments so cited, therefore, will be of no
consequence.
13. What is most surprising is that the learned Senior
Counsel has relied on as many as following five authorities
wherein the Court held that time limit for filing appeal shall
commence from the date of rectification/review order. Thus,
the applicant is aware that the time to file appeal will not
commence pending decision on rectification application.
(1) Hind Wire Industries Ltd. Vs. Commissioner of Income Tax
[1998 (99) E.L.T. 25 (S.C.)],
(2) International Cotton Corpn. (P) Ltd. Vs. Commercial Tax
Officer, Hubli and others [(1975) 3 SCC 585] ,
(3) Pankaj Gupta Vs. Commr. of Cus., C. Ex. & S.T., Indore
[2018 (15) G.S.T.L. 546 (M.P.)],
(4) M/s. SPK and Co, represented by its Joint Managing Partner
Vs. The State Tax Officer, Muthukulathur Assessment Circle
(Madurai Bench of Madras High Court) in W.P. (MD) Nos.
27787 and 27788 of 2024 dated 22-11-2024 and
(5) Sri Ramajeyan Engineering Industries, represented through
its Managing Partner K. Latha Vs. The Deputy Commissioner
(ST), Thanjavur (Madurai Bench of Madras High Court) in
9 cat 12.2023+13
W.P. (MD) Nos. 30452 of 2024 and 25590 & 25592 of 2024
dated 16-12-2024.
The Court held that the period of limitation should be
calculated from the date of the latest, or rectified, assessment
order and not the original order. Thus, the applicant is aware
that the period of limitation for challenging the order dated 22-
6-2022 passed by the appellate tribunal in appeal under Section
35-G(2) shall start running from the date of rejection of
rectification application. The rectification application, in the
present case, having been not decided when the appeal was
filed before this Court, there arises no question of arisen of
cause to prefer appeal.
14. Learned Senior Counsel has also relied upon the
judgment in the case of Vortex Engineering Works Vs. Union of
India [2018 (362) E.L.T. 1029 (Bom.)] to contend that
delay in filing appeal on account of pendency of rectification
application is condonable. We have gone through the said
judgment to find that the facts were altogether different. The
argument before the High Court was that delay should be
condoned considering the fact of pendency of rectification
application. The Court, however, noted that the tribunal did
not consider whether the principles of the Limitation Act could
apply to condone delay and, therefore, the impugned order was
set aside and the appeal was restored for fresh consideration on
merit including the reason for delay. Thus, the High Court has
not held that the delay could be condoned on account of
pendency of rectification application.
15. We have earlier noted that to extend benefit under
Section 14, the litigant should pursue cause before the Court,
who had either no jurisdiction or had some disability to
entertain the proceedings. We have also noted that it is not the
case of the applicant that proceedings under Section 35-C(2) of
10 cat 12.2023+13
the Act of 1944 were not maintainable before the appellate
tribunal, rather, the proceedings have been entertained and a
decision taken by the appellate tribunal. That being so, there
arises no question of exclusion of time in accordance with
Section 14 of the Limitation Act. More so, when the applicant
has challenged order dated 30-8-2022 passed by the appellate
tribunal, rejecting the application for rectification of mistake.
Writ Petition No. 5008/2024 to that effect is filed. Thus, the
applicant is maintaining his stand that there occurred apparent
error in the impugned order.
16. Put altogether, firstly, there was no reason for the
applicant to have argued the matter twice, initially through
Advocate Shri P. K. Mohta and thereafter by Shri V. Sridharan,
learned Senior Counsel. Further, there appears no justification
as to why should on one point, the applicant cite multiple
judgments, that too, where the point involved has no
connection with the judgments cited by the applicant. The
applicant, therefore, carries a blame of consuming judicial time
of the Court for no valid reason. The applications are
accordingly rejected with costs of Rs. 5,000/- for each
application.
17. The costs shall be deposited with this Court within 15
working days. The Registry shall pay the costs to the Uccha
Nyayalay Chaturth Shreni Karmachari Sangh, Nagpur.
(S. S. THOMBRE, J.) (A. L. PANSARE, J.)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge
Date: 15/09/2025 19:14:57
