# 7 S.C.R. 291 *M.P. STEEL CORPORATION v. COMMISSIONER OF CENTRAL EXCISE

- **Citation:** [2015] 7 S.C.R. 291
- **Court:** Supreme Court of India
- **Decided:** 2015
- **Case number:** Civil Appeal No.4367 of 2004
- **Bench:** A.K. Sikri, R. F. Nariman
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/7-s-c-r-291-m-p-steel-corporation-v-commissioner-of-central-excise-30927
- **Pages:** 64

## Headnote

A
B
Limitation Act, 1963 - s. 14 -Applicability and scope of c
- To the proceedings before Tribunal - Held: s. 14 is
applicable to the suits, appeals and applications filed before
the Court and not before quasi-judicial bodies - However,
even wheres. 14 may not apply, the principles on which s. 14
is based i.e. the principles which advance the cause of o
justice, would nevertheless apply- The principle of s.14
would, therefore, apply to exclude time taken in prosecuting
proceedings which are bonafide and pursued with due
diligence - Even prior to the institution of a particular
proceeding, time taken in steps taken for prosecuting such E
proceedings should a/so be excluded- In the present case,
limitation as provided uls. 128 of Customs Act being not a
complete code by itself, the pnnciples contained in s. 14
would apply- In the facts of the case, the period of pursuing
remedy by the appellant before the wrong forum, ought to F
be excluded - Matter remanded to the Commissioner
(Appeals) - Customs Act, 1962 - s. 128.
Customs Act, 1962 - s. 128 - Limitation period underWhether pre-amendment or post-amendment in 2001, G
• Para 53 of the judgement dated 23-4-15 to be read with subsequent order
dated 24-4-15.
291
292
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
applicable in the facts of the present'case - Held: Periods
of limitatiog~ are procedural in nature and would ordinarily
be applied retrospectively- In the facts of the case, limitation
period, as provided under pre-amended s. 128, would apply.
-
B
Allowing the appeal, the Court
HELD: 1. The averment of the appellant in the
application for condonation of delay that they were
pursuing a remedy before another appellate forum which
c ought to be excluded, is sufficient for the appellant to
contend that Section 14 of the Limitation Act or principles
laid down under it would be attracted to the facts of the
present casa. [Para 7) [306-B; 307-B]
D
2. Conditions 1 to 4 mentioned in the **Consolidated
Engineering case have, in fact, been met by the appellant
Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party. The prior
proceeding had been prosecuted with due diligence and
E in good faith. The earlier Supreme Court order dated
12.3.2003 in the previous litigation itself points out that
there was some confusion as to whether what was
appealed against, was the Superintendent's order or the
Collector's order. The appellant bona fide believed that
F it was the Collector's order which was appealed against
and hence an appeal to CEGAT would be maintainable.
Thus, neither was there any negligence, lapse or inaction
on facts nor did the appellant delay proceedings to
harass the Department by pretending that there was a
G mistake. Condition (3) was also directly met- this Court
in the order-dated 12.3.2003 set aside CEGAT's order on
the ground that it was without jurisdiction. It is
indisputable that the earlier proceeding and the later
proceeding relate to the same matter in issue and thus
H condition 4 is also met. [Para 7] [306-C-H]
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 293
3. A perusal of the Limitation Act, 1963 would show A
that the bar of limitation contained in the Schedule to
the Act applies to suits, appeals, and applications. "Suit"
is defined in Section 2(1) as not including an appeal or
an application. The word "Court" is not defined under
the Act. However, it appears in a number of its provisions B
viz. Sections 4,5, 13, 17(2),21 of the Limitation Act. On a
plain reading of the provision' of the Limitation Act, it
becomes clear that suits, appeals and applications are
only to be considered {from the limitation point of view)
if they are filed in courts and not in quasi-judicial bodies. C
[Paras 8 and 16) [307-C-D; 311-H; 312-A]
Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. 1950
SCR 459; Town Municipal Council, Athani v. Presiding Officer,
Labour Court (1969) 1 SCC 873:1970 (1) SCR 51; D
Nityananda, M. Joshi & Ors. v. Life Insuran

## Text

_Characters 0–39,834 of 116,542. This is a partial read: ask again with offset=39834 for what follows._

[2015) 7 S.C.R. 291
*M.P. STEEL CORPORATION
v.
COMMISSIONER OF CENTRAL EXCISE
(Civil Appeal No.4367 of 2004)
APRIL23, 2015ANDAPRIL24, 2015
[A.K. SIKRI AND R. F. NARIMAN, JJ.]
A
B
Limitation Act, 1963 - s. 14 -Applicability and scope of c
- To the proceedings before Tribunal - Held: s. 14 is
applicable to the suits, appeals and applications filed before
the Court and not before quasi-judicial bodies - However,
even wheres. 14 may not apply, the principles on which s. 14
is based i.e. the principles which advance the cause of o
justice, would nevertheless apply- The principle of s.14
would, therefore, apply to exclude time taken in prosecuting
proceedings which are bonafide and pursued with due
diligence - Even prior to the institution of a particular
proceeding, time taken in steps taken for prosecuting such E
proceedings should a/so be excluded- In the present case,
limitation as provided uls. 128 of Customs Act being not a
complete code by itself, the pnnciples contained in s. 14
would apply- In the facts of the case, the period of pursuing
remedy by the appellant before the wrong forum, ought to F
be excluded - Matter remanded to the Commissioner
(Appeals) - Customs Act, 1962 - s. 128.
Customs Act, 1962 - s. 128 - Limitation period underWhether pre-amendment or post-amendment in 2001, G
• Para 53 of the judgement dated 23-4-15 to be read with subsequent order
dated 24-4-15.
291
292
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
applicable in the facts of the present'case - Held: Periods
of limitatiog~ are procedural in nature and would ordinarily
be applied retrospectively- In the facts of the case, limitation
period, as provided under pre-amended s. 128, would apply.
-
B
Allowing the appeal, the Court
HELD: 1. The averment of the appellant in the
application for condonation of delay that they were
pursuing a remedy before another appellate forum which
c ought to be excluded, is sufficient for the appellant to
contend that Section 14 of the Limitation Act or principles
laid down under it would be attracted to the facts of the
present casa. [Para 7) [306-B; 307-B]
D
2. Conditions 1 to 4 mentioned in the **Consolidated
Engineering case have, in fact, been met by the appellant
Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party. The prior
proceeding had been prosecuted with due diligence and
E in good faith. The earlier Supreme Court order dated
12.3.2003 in the previous litigation itself points out that
there was some confusion as to whether what was
appealed against, was the Superintendent's order or the
Collector's order. The appellant bona fide believed that
F it was the Collector's order which was appealed against
and hence an appeal to CEGAT would be maintainable.
Thus, neither was there any negligence, lapse or inaction
on facts nor did the appellant delay proceedings to
harass the Department by pretending that there was a
G mistake. Condition (3) was also directly met- this Court
in the order-dated 12.3.2003 set aside CEGAT's order on
the ground that it was without jurisdiction. It is
indisputable that the earlier proceeding and the later
proceeding relate to the same matter in issue and thus
H condition 4 is also met. [Para 7] [306-C-H]
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 293
3. A perusal of the Limitation Act, 1963 would show A
that the bar of limitation contained in the Schedule to
the Act applies to suits, appeals, and applications. "Suit"
is defined in Section 2(1) as not including an appeal or
an application. The word "Court" is not defined under
the Act. However, it appears in a number of its provisions B
viz. Sections 4,5, 13, 17(2),21 of the Limitation Act. On a
plain reading of the provision' of the Limitation Act, it
becomes clear that suits, appeals and applications are
only to be considered {from the limitation point of view)
if they are filed in courts and not in quasi-judicial bodies. C
[Paras 8 and 16) [307-C-D; 311-H; 312-A]
Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. 1950
SCR 459; Town Municipal Council, Athani v. Presiding Officer,
Labour Court (1969) 1 SCC 873:1970 (1) SCR 51; D
Nityananda, M. Joshi & Ors. v. Life Insurance Corporation &
Ors. (1969) 2 SCC 199: 1970 (1) SCR 396 - relied on.
Cooper v. Wilson - referred to.
4. Under the constitutional scheme, the judiciary is
dealt with in Chapter IV of Part V and Chapter V of Part
VI. When the Constitution uses the expression "court",
E
it refers to this Court system. As opposed to this, court
system is a system of quasi-judicial bodies called F
Tribunals. Thus Articles 136 and 227 refer to 'courts' as
distinctfrom 'tribunals'. [Para 18) [312-H; 313-A-B]
Kera/a State Electricity Boardv. T.P Kunhaliumm, (1976)
4 SCC 634: 1977 (1) SCR 996 ; Athani Municipal Council G
case (1969) 1 SCC 873 : (1970) 1 SCR 51: Commissioner
of Sales Tax, U.P, Lucknow v. Parson Tools and Plants,
Kanpur (1975) 4 SCC 22; Special Duty (Land Acquisition) v.
Shah Manila/Chandu/al (1996) 9 SCC 414: 1996 (2) SCR
366; Consolidated Engg. Enterprises v. Principal secy.,
H
294
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A Irrigation Deptt., (2008) 7 SCC 169: 2008 (5) SCR 1108relied on ..
B
C.S. T. v. Madan Lal Das and Sons 1976 (4) SCC 464:
1977 (1) SCR 683-held per-in-curiam.
Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker
(1995) 5 SCC 5: 1995 ( 2 ) Suppl. SCR 1 - Partially
overruled.
Shakti Tubes Ltd. v. State of Bihar (2009) 1 SCC 786 -
C held inapplicable.
D
E
Om Prakashv. Ashwani KumarBassi(2010) 9SCC183;
P. Sarathy v. State Bank of India (2000) 5 SCC 355: 2000
(1) Suppl. SCR 402- referred to.
4.1 However, even where Section 14 may not apply,
the principles on which Section 14 is based, being
principles which advance the cause of justice, would
nevertheless apply. [Para 31] [331-E]
Bhudan Singh & Anr. v. Nabi Bux & Anr.(1970) 2 SCR
1 O; J. Kumaradasan Nair v. Irie Sohan (2009) 12 SCC 175:
2009 (3) SCR 238-relied on.
F
4.2 Various provisions of the Limitation Act are based
on advancing the cause of justice. Section 6 (Legal
disability) is one such. On the assumption that Section
6 does not apply on the facts of a given case, it cannot
be said that the principles on which it is based have no
G application. This Section again is a pointer to the fact
that courts always lean in favour of advancing the cause
of justice where a clear case is made out for so doing.
[Para 33] [334-G; 335-H; 336-A, BJ
4.3Section128 is not a complete code by itself which
H necessarily excludes the application of Section 14 of the
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 295
Limitation Act. To infer exclusion of Section 14 or the A
principles contained in Section 14 would be unduly harsh
and would not advance the cause of justice. The principle
of Section 14 which is a principle based on advancing
the cause of justice would certainly apply to exclude time
taken in prosecuting proceedings which are bona fide B
and with due diligence pursued, which ultimately end
without a decision on the merits of the case. [Paras 34
and 35] [336-C; 337-A; 338-A]
Ranbaxy Laboratories Ltd. v. Union of India (2011) 10 C
SCC 292: 2011(13)SCR1; Sree Balaji Nagar Residential
Assn. v. State of Tamil Nadu (2015) 3 SCC 353 - held
inapplicable.
5. The object of Section 14 is that if its conditions o
are otherwise met, the plaintiff/applicant should be put
in the same position as he was when he started an
abortive proceeding. What is necessary is the absence
of negligence or inaction. So long as the plaintiff or
applicant is bonafide pursuing a legal remedy which E
turns out to be abortive, the time beginning from the date
of the cause of action of an appellate proceeding is to
be excluded if such appellate proceeding is from an order
in an original proceeding instituted without jurisdiction
or which has not resulted in an order on the merits of F
the case. The period from the cause of action till the
institution of appellate or revisional proceedings from
original proceedings which prove to be abortive are also
liable to exclusion under the Section. The period prior
to institution of the initiation of any abortive proceeding G
cannot be excluded for the simple reason that Section
14 does not enable a litigant to get a benefit beyond what
is contemplated by the Section - that is to put the litigant
in the same position as if the abortive proceeding had H
296
SUPREME COURT REPORTS
(2015] 7 S.C.R.
A never taken place. [Paras 41 and 43] [342-G-H; 343-A;
346-E-F]
Union of India v. West Coast Paper Mills Ltd.(2004) 3
SCC 458: 2004 (2 ) SCR 642; India Electric Works Ltd. v.
B James Mantosh (1971) 1 SCC 24 - relied on.
c
Tirumareddi Rajarao & Ors. v. The State of Andhra
Pradesh & Ors. AIR 1965 A.P. 388; Mst. Duliyabai & Ors. v.
Vilayatali & Ors. AIR 1959 MP 271 - referred to.
6. In the present case, the abortive appeal had been
filed against orders passed in March- April, 1992. The
present appeal was filed under Section 128, which
Section continues on the statute book till date. Before
0 its amendment in 2001, it provided a maximum period of
180 days within which an appeal could be filed. Time
began to run on 3.4.1992 u/s.128 prG-amendment, when
the appellant received the order of the Superintendent
of Customs intimating it about an order passed by the
E Collector of Customs on 25.3.1992. Under Section 128
as it then stood, a person aggrieved by a decision or
order passed by a Superintendent of Customs could
appeal to the Collector (Appeals) within three months
from the date of communication to him of such decision
F or order. The Department preferred an appeal against
the order dated 23.6.1998 passed by CEGAT sometime
in the year 2000 which appeal was decided in their favour
by this court only on 12.3.2003 by which CEGAT's order
was set aside on the ground that CEGAT had no
G jurisdiction to entertain such appeal. The time taken from
12.3.2003 to 23.5.2003, on which date the present appeal
was filed before the Commissioner (Appeals) would be
within the period of 180 days provided by the preamended s.128, when added to the time taken between
H 3.4.1992 ant.I 22.6.1992. The order that is challenged in
the present case was passed before 2001 i.e. before the
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 297
amendement of s.128. The right of appeal within a period A
of 180 days (which includes the discretionary period of
90 days) from the date of the said order was a right which
vested in the appellant. A shadow was cast by the
abortive appeal from 1992 right upto 2003. This shadow
was lifted when it became clear that the proceeding filed B
in 1992 was a proceeding before the wrong forum. The
vested right of appeal within the period of 180 days had
not yet got over. Upon the lifting of the shadow, a certain
residuary period within which a proper appeal could be
filed, still remained. That period would continue to be C
within the period of 180 days notwithstanding the
amendment made in 2001 as otherwise the right to
appeal itself would vanish given the shorter period of
limitation provided by Section 128 after 2001. [Para 52] 0
[352-H; 353-A-H; 354-A]
New India Insurance Co. Ltd. v. Shanti Misra (1975) 2
SCC 840: 1976 ( 2 )SCR 266 ; Vinod Gurudas Raikar v.
National Insurance Co. Ltd. (1991) 4 SCC 333: 1991 (3) SCR
912; Union of India v. Harnam Singh (1993) 2SCC162: 1993 E
( 1 ) SCR 862 ; New India Insurance Co. Ltd. v.Smt Shanti.
Misra (1975) 2 SCC 840 : (1976) 2 SCR 266;. Thirumalai
Chemicals Ltd. v. Union oflndia (2011) 6 SCC 739: 2011 (4)
SCR 838 - distinguished.
Tirumareddi Rajarao & Ors. v. The State of Andhra
Pradesh & Ors. AIR 1965 A.P. 388; Mst. Duliyabai & Ors. v.
Vilayatali & Ors. AIR 1959 MP 271 - referred to.
Case Law Reference
1950 SCR 459
. 1970 (1) SCR 51
1970 (1) SCR 396
relied on
. I' • •
relied on
rehed on
Para 17
Para 19
Para 19
F
G
H
298
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
1977 (1) SCR 996
relied on
Para 20
(1975) 4 sec 22
relied on
Para 21
1977 (1) SCR 683
held per-in-curiam Para 22
B
1996 (2) SCR 366
relied on
·Para 24
1995 (2) Suppl. SCR 1 partially overruled Para 25
(2010) 9 sec 183
referred to
Para 25
c
2008 (5) SCR 1108
relied on
Para 26
2000 (1) Suppl. SCR 402 referred to
Para 30
(2009) 1 sec 786
held inapplicable Para 31
D
(1970) 2 SCR 10
relied on
Para 31
2009 (3) SCR 238
relied on
Para 32
2011 (13) SCR 1
held inapplicable Para 36
E
(2015) 3 sec 353
held inapplicable Para 37
AIR 1965A.P. 388
referred to
Para 39
AIR 1959 MP 271
referred to
Para 40
F
2004 (2) SCR 642
relied on
Para 42
(1971) 1 sec 24
relied on
Para 42
.,
G
1976 (2) SCR 266
referred to
Para 45
1991 (3) SCR 912
referred to
Para 47
1993 (1) SCR 862
referred to
Para 47
2011 (4) SCR 838
distinguished
Para 50
H
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 299
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
A
4367 of 2004.
·
From the Judgment and Order no. C-111/866 WZB/2004
dated 25.02.2004 of the Customs,sExcise & Service Tax
Appellate Tribunal, WZB, Mumbai in Appeal No. C/105/04.
B
ail
K. V. Vishwanathan, B. Raghunath, Gautam Bhardwaj,
Abhishek Kaushik, Mehul M. Gupta, Adeeba Mujahid, S. R.
Setia for the Appellant.
A. K. Sanghi, Sunita Rani Singh, Ritesh Kumar, B. Krishna
C
Prasad for the Respondent.
The Judgment of the Court was delivered by
R.F. NARIMAN, J. 1. The facts giving rise to the present o
appeal are as follows. The appellant is engaged in ship
breaking activity atAlang Ship Breaking Yard. The appellant
imported a vessel, namely, M.V. Olinda, for the purpose of
breaking the same, and filed a Bill of Entry when the vessel
was imported on 7 .2.1992. It declared in the said Bill of Entry E
that the Light Displacement Tonnage of the vessel was 7009
metric tons. On 19.2.1992, the appellant was informed by the
Superintendent of Customs and Central Excise Alang that the
Light Displacement Tonnage of the ship is actually 8570 tons
and that customs duty was to be levied on this tonnage. On
F
3.3.1992, the appellant cleared the vessel on payment of
customs duty on the basis of 7009 metric tons and executed a
bank. guarantee for Rs.19,90,275/- being the difference in
customs duty on 1561 metric tons. On 25.3.1992, the Collector
of Customs, Rajkot, directed the Assistant Collector, G
Bhavnagar to encash the bank guarantee furnished by the
appellant. On 2.4.1992, the Superintendent of Customs and
Central Excise sent a letter to the appellant communicating
the decision of the Collector, as aforesaid. The bank guarantee H
300
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A was duly encashed on 3.4.1992. After protesting against the
said illegal action of the Department in encashing the bank
guarantee, the appellant preferred an appeal against the
Superintendent's letter dated 2.4.1992 and the Collector's
order dated 25.3.1992 before CEGAT. On 23.6.1998, the
B Appellate Tribunal allowed the appeal and set aside the order
of the Collector dated 25.3.1992. In the year 2000, the
Department preferred an appeal before this Court. On
12.3.2003, this Court allowed the appeal holding:
c
D
E
F
G
H
"This appeal is against a judgment dated 23.6.1998
passed by the Customs, Excise And Gold (Control)
Appellate Tribunal, West Regional Bench at Mumbai.
Facts briefly stated are that the respondent filed a Bill of
Entry in respect of ship M.V. Olinda imported by them for
purposes of breaking. The respondent showed tile light
displacement tonnage (LDT) as 7009 metric tons. This
declaration was not accepted by the Superintendent of
Customs and Central Excise. The respondent, thus,
approached the Assistant Collector. The question was
how LDT was to be calculated. It appears that between
the Assistant Collector and the Collector there was some
internal correspondence on this aspect. The Collector
took a policy decision on how LDT was to be calculated.
The Collector conveyed this decision to the Assistant
Collector by his letter dated 25.3.1992. Pursuant thereto
the Superintendent of Customs and Central Excise
passed an order dated 2"dApril, 1992 in respect of vessel
M.V. "Olinda". Of course the order dated 2nd April, 1992
is based on the decision of the Collector. However, the
order remains that of the Superintendent of Customs and
Central Excise.
The respondent filed an appeal directly before CEGAT.
CEGAT has disposed of this appeal by the impugned
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 301
[RF. NARIMAN, J]
order. CEGAT negatived a contention that the appeal A
was not :naintainable before them on the basis that the
Superintendent's order is nothing more than a
communication of the order passed by the Collector
(Appeals). CEGAT held that the appeal was in fact
against the Collector's order.
B
In our view, the reasoning of CEGAT cannot be
sustained. The decision taken by the Collector was not
taken in his capacity as Collector (Appeals). Also the
order by which respondent is aggrieved is the order C
passed by the Superintendent. An appeal against that
order has to be filed before the Commissioner (Appeals)
under Section 128. By virtue of Section 129-A, CEGAT
has no jurisdiction to entertain such an appeal.
It is clear that the impugned order is passed without any
jurisdiction. Therefore, it cannot be sustained. We, thus,
set aside the order. The appeal is accordingly allowed.
There will be no order as to costs.
We clarify that we have not gone into the ·merits of the
matter and that it will be open to the respondent to adopt
such remedy as they may be advised, if in law they are
entitled to do so."
2. After this judgment, on 23.5.2003, the appellant filed
an appeal before the Commissioner (Appeals) against the
order passed by the Superintendent, Customs dated 2.4.1992.
On 4.8.2003, an application to condone delay in filing the
D
E
F
appeal was made in the following terms:
G
''As appeal against the order of the Supdt. of Customs
was filed by us within 60 days of the receipt of the certified
true copy of the judgment of the Hon'ble Supreme Court.
It is our respectful submission that since the appeal was H
filed by us before the correct forum with due dispatch
302
A
B
SUPREME COURT REPORTS
[2015) 7 S.C.R.
after receipt of the Supreme Court's judgment, there has
been no delay in filing the appeal. It is well settled now
that the time taken for pursuing a remedy before another
appellate Forum is to be excluded for the purpose of
computing the period for filing an appeal. (Union Carbide
India Ltd. Vs. CC 1998 (77) ECR 376, Karnataka
Minerals & Mfg. Co. Ltd. Vs. CCE 1998 (101) ELT627)."
3. By an order dated 27.10.2003, the Commissioner of
Customs (Appeals) dismissed.the appeal on the ground of
C delay stating that the appeal had been filed way beyond the
period of 60 days plus 30 days provided for in Section 128 of
the Customs Act. Against this order, CESTAT dismissed the
appeal of the appellant stating that the Commissioner (Appeals)
had no power to condone delay beyond the period specified
D in Section 128.
4. Shri Viswanathan, learned senior advocate appearing
on behalf of the appellant argued before us that the entire
period starting from 25.3.1992 up till 12.3.2003 ought to be
E excluded by applying Section 14 of the Limitation Act.
According to him, Section 14 of the Limitation Act would apply
to exclude this period from the period of 90 days allowed in
filing an appeal filed to the Collector (Appeals) inasmuch as
vide Section 29 (2) of the Limitation Act Section 14 of the
F Limitation Act would also apply to Tribunals set up under special
or local Acts. According to him, the entire period with which he
was prosecuting, with due diligence, the abortive appeal filed
before CEGAT should be excluded, which would include the
period even prior to 22.6.1992 when the abortive appeal was
G filed. As an alternative submission, on the assumption that
Section 14 applied only to Courts and not to Tribunals, he
submitted that the principle of Section 14 would then apply.
According to him, Section 128 of the Customs Act before its
H amendment in 2001 would be attracted on the facts of this
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 303
[R.F. NARIMAN, J]
case giving him a period of 90 days plus an extended period A
of a further period of 90 days within which the present appeal
could be filed. This being the case, on an application of Section
14, the appeal would be filed with no delay at all even if the
period from 3.4.1992 to 22.6.1992 and 12.3.2003 to 23.5.2003
is to be taken into account, as that would be less than 180 B
days.given to file the appeal under the old Section 128. He
cited a number of authorities which we-will deal with in the
course of this judgment in support of all the aforesaid
propositions.
c
5. Shri A.K. Sanghi, learned senior advocate appearing
on behalf of the Department argued that Section 128 of the
Customs Act excluded the application of Section 14 of the
Limitation Act in that the scheme of the Section is that only a
limited period should be given to an assessee beyond which D
the appeal would become time barred. In the present case,
Section 128 as amended post 2001 would apply to the facts
of this case and on the appellant's own showing the appeal is
out of time by eleven and a half years. Section 128 only gives
the appellant 60 days plus another 30 days which have long E
gone. He also argued that Section 14 of the Limitation Act
would not apply to Tribunals but only to Courts, and the Collector
{Appeals) was at best a quasi-judicial Tribunal. Further,
according to him, no question of any principle of section 14 F
would get attracted. In fact, according to him, there is no
pleading qua Section 14 at .all - the only pleading is for
condonation of delay and not for exclusion of time. Section 14
requires that five necessary ingredients must be satisfied on
facts before it can be attracted. The appellant has neither G
pleaded nor proved any of these ingredients. He also cited a
number of authorities which we will refer to in the course of this
judgment.
Ingredients of Section 14.
H
304
SUPREME COURT REPORTS
[2015) 7 S.C.R.
A
Section 14 of the Limitation Act reads as foilows:
"14. Exclusion of time of proceeding bona fide in
courtwithoutjurisdiction.-(1) In computing the period
of limitation for any suit the time during which the plaintiff
B
has been prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of
appeal or rev.ision, 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
C
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
D
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 a court which, from defect of jurisdiction or other
E
cause of a like nature, is unable to entertain it.
"
(3) Notwithstanding anything contained in Rule 2 of Order
XXlll of the Code of Civil Procedure, 1908 (5 of 1908),
the provisions of sub-section ( 1) shall apply in relation to
F
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.
G
Explanation.-Forthe purposes of this section,-
(a) in excluding the time during which a former civil
'
proceeding was pending, the day on which that
H
proceeding was instituted and the day on which it ended
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 305
[RF. NARIMAN, J]
shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be
deemed to be prosecuting a proceeding;
A
(c) misjoinder of parties or of causes of action shall be B
deemed to be a cause of a like nature with defect of .
jurisdiction."
6. Shri A. K. Sang hi, learned senior counsel appearing on
behalf of the Department has stated that at no point of time
has the appellant taken up a plea based on Section 14. Neither C
has the appellant met with any of the five conditions set out in
paragraph 21 of Consolidated Engg. Enterprises v.
Principal secy., Irrigation Deptt., (2008) 7SCC169, which
reads as follows:-
D
"21. Section 14 of the Limitation Act deals with exclusion
of time of proceeding bona fide in a court without
jurisdiction. On analysis of the said sectio~. it becomes
evident that the following conditions must be satisfied
before Section 14 can be pressed into service:
E
( 1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
\
(2) The prior proceeding had been prosecuted with due F
diligence and in good faith;
( 3) The failure of the prior proceeding was due to defect
of jurisdiction or other cause of like nature;
( 4) The earlier proceeding and the latter proceeding must G
relate to the same matter in issue and;
(5) Both the proceedings are in a court."
7. Technically speaking, ShriA.K. Sanghi, may be correct.
H
306
SUPREME COURT REPORTS
[2015) 7 S.C.R.
A However, in an application for condonation of delay the
appellant pointed out that they were pursuing a remedy before
another appellate forum which ought to be excluded. We deem
this averment sufficient for the appellant to contend that Section
14 of the Limitation Act or principles laid down under it would
B be attracted to the facts of this case.
We might also point out that conditions 1 to 4 mentioned
in the Consolidated Engineering case have, in fact, been met
by the appellant. It is clear that both the prior and subsequent
C proceedings are civil proceedings prosecuted by the same
party. The prior proceeding had been prosecuted with due
diligence and in good faith, as has been explained in
Consolidated Engineering itself. These phrases only mean that
the party who invokes Section 14 should not be guilty of
D negligence, lapse or inaction. Further, there should be no
pretended mistake intentionally made with a view to delaying
the proceedings or harassing the opposite party. On the facts
of this case, as the earlier Supreme Court order dated
12.3.2003 itself points out, there was some confusion as to
E whether what was appealed against was the Superintendent's
order or the Collector's order. The appellant bona fide believed
that it was the Collector's order which was appealed against
and hence an appeal to CEGATwould be maintainable. This
F contention, however, ran into rough weather in this Court.
Further, the time taken between 3.4.1992 and 22.6.1992 to
file an appeal cannot be said to be inordinately long. Thus,
neither was there any negligence, lapse or inaction on facts
nor did the appellant delay proceedings to harass the
G Department by pretending that there was a mistake. Condition
(3) was also directly met - this Court in the order dated
12.3.2003 set aside CEGAT's order on the ground that it was
without jurisdiction. It is indisputable that the earlier proceeding
and the later proceeding relate to the same matter in issue
H and thus condition 4 is also met. Condition 5, however, has
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 307
[R.F. NARIMAN, J]
not been met as both the proceedings are before a quasiA
judicial Tribunal and not in a Court. This, however, is not fatal
to the present proceeding as what is being held by us in this
judgment is that despite the fact that Section 14 of the Limitation
Act may not apply, yet the principles of Section 14 will get
attracted to the facts of the present case. It is in this way that B
we now proceed to consider the law on the subject.
Whether the Limitation Act applies only to Courts
and not to Tribunals
c
8. A perusal of the Limitation Act, 1963 would show that
the bar of limitation contained in the Schedule to the Act applies to suits, appeals, and applications. "Suit" is defined in
Section 2(1) as not including an appeal or an application. The
word "Court" is not defined under the Act. However, it appears o
in a number of its provisions (See: Sections 4,5, 13, 17(2),21).
A perusal of the Schedule would show that it is divided into
three divisions. The first division concerns itself with suits. Articles 1 to 113 all deal with "suits".
9. Sections 2(a),(e) and (i) are material in that they define
what is meant by an applicant, a plaintiff and a defendant.
"2. Definitions.-ln this Act, unless the context otherwise
requires,-
(a) "applicant" includes-
(1) a petitioner;
E
F
(i1) any person from or through whom an applicant derives G
his right to apply;
(iii) any person whose estate is represented by the
applicant as executor, administrator or other
representative;
H
308
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
(e) "defendant" includesB
(1) any person from or through whom a defendant derives
his liability to be sued;
(it) any person whose estate is represented by the
defendant as executor, administrator or other
representative;
(1) "plaintiff" includesC
(1) any person from or through whom a plaintiff derives
his right to sue;
D
E
F
(it) any person whose estate is represented by the plaintiff
as executor, administrator or other representative;"
10. Section 3(2) which is material states as follows:
"3(2) For the purposes ofthisAct-
(a)
A suit is instituted-
(i)ln an ordinary case, when the plaint is presented to the
proper officer;
(ii) In the case of a pauper, when his application for leave
to sue as a pauper is made; and
(iii) In the case of a claim against a company which is
being wound up by the court, when the claimant first sends
in his claim to the official liquidator;
G
(b)Any claim byway of a set off or a counterclaim, shall
be treated as a separate suit and shall be deemed to
have been instituted -
(i)in the case of a set off, on the same date as the suit in
H
which the set off is pleaded;
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 309
[R.F. NARIMAN, J]
/
(ii)in the case of a counter claim, on the date on which A
the counter claim is made in court;
(c)an application by notice of motion in a High Court is
made when the application is presented to the proper
officer of that court."
B
11. A perusal of Section 3(2) shows that "suits" are understood as actions begun in courts of law established under the
Constitution of India.
12. In the Schedule, the second division concerns itself C
with appeals. These appeals under Articles 114 to 117, are
either under the Civil Procedure Code, the Criminal Procedure Code, or intra-court appeals so far as the High Courts
are concerned. These appeals again are only to "Courts" es0
tablished under the Constitution.
13. Equally, in the third division, all applications that are
referred to are under Articles 118 to 137 only to "Courts", either under the Civil Procedure Code or under other enactments.
14. Sections 13, 21andArticles124, 130and 131 ofthe
Limitation Act are again important in understanding what is
meant by the expression "Court". They are set out below:
E
"13. Exclusion of time in cases where leave to sue F
· or appeal as a pauper is applied for.-ln computing
the period of limitation prescribed for any suit or appeal
in any case where an application for leave to sue or
appeal as a pauper has been made and rejected, the
time during which the applicant has been pros~cuting in G
good faith his application for such leave shall be
excluded, and the court may, on payment of the court fees
prescribed for such suit or appeal, treat the suit or appeal
as having the same force and effect as if the court fees
had been paid in the first i.nstance.
H
310
'
A
B
SUPREME COURT REPORTS
[2015] 7 S.C.R.
21. Effect of substituting or adding new plaintiff or
defendant.-( 1) Where after the institution of a suit, a
new plaintiff or defendant is substituted or added, the
suit shall, as regards him, be deemed to have been
instituted when he was so made a party:
Provided that where the court is satisfied that the
omission to include a new plaintiff or defendant was due
to a mistake made in good faith it may direct that the suit
as regards such plaintiff or defendant shall be deemed
C
to have been instituted on any earlier date.
(2) Nothing in sub-section (1) shall apply to a case where
a party is added or substituted owing to assignment or
devolution of any interest during the pendency of a suit
o
or where a plaintiff is made a defendant or a defendant
is made a plaintiff.
Schedule
124. For a review of judgment lrhirty days
,The date of the
E
by a court other than the
decree or order.
Supreme Court.
'
130. c: or leave to appeal as a
ba uper --
F
a) to the High Court;
Sixty days
The
date
of
decree
~ppealed from.
b) to any other court.
'""hirty days
The
date
of
decree
appealed from.
G
131. lro
any
court
for
the Ninety days
The date of the
exercise of its powers ol
decree or order
evision under the Code ol
or
sentence
L-civil Procedure, 1908 (5 ol
sought
to
be
h 9 08),
or
the
Code
of
revised.
Criminal Procedure, 1898 (5
i
H
)f 1898).
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 311
[R.F. NARIMAN, J]
It will be seen that suits and appeals that are covered by A
the Limitation Act are so covered provided court fees
prescribed for such suits or appeals are paid. Under Section
13, set out hereinabove, this becomes clear. That is why time
is excluded in cases where leave to file a suit or an appeal as
a pauper is granted in the circumstances mentioned in the B
Section. 'Courts' that are mentioned in this Section are
therefore courts as understood in the strict sense of being part
of the Judicial Branch of the State.
15. Section 21 also makes it clear that the suit that the C
Limitation Act speaks of is instituted only by a plaintiff against
a defendant. Both plaintiff and defendant have been defined
as including persons through whom they derive their right to
sue and include persons whose estate is represented by
persons such as executors, administrators or other D
representatives. This again refers only to suits filed in courts
as is understood by the Code of Civil Procedure. In this regard,
Section 26 of the CPC states:
"Section 26- Institution of suits
(1 )Every suit shall be instituted by the presentation of a
plaint or in such other manner as may be prescribed.
(2) In every plaint, facts shall be proved by affidavit." '
E
F
16. When it comes to applications, again Articles 124,
130 and 131 throw a great deal of light. Only .review of
judgments by a "court" is contemplated in the Third Division in
the Schedule. Further, leave to appeal as a pauper again can
be 1"1ade either to the High Court or only to any other court G
vide Article 130. And by Article 131, a revision petition filed
only before Courts under the Code of Civil Procedure Code
or the Code of Criminal Procedure are referred to. On a plain
reading 0f the provisions of the Limitation Act, it becomes clear H
that suits, appeals and applications are only to be considered
312
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A (from the limitation point of view) if they are filed in courts and
not in quasi-judicial bodies.
17. Now to the case law. A number of decisions have
established that the Limitation Act applies only to courts and
B not tu Tribunals. The distinction between courts and quasijudicial decisions is succinctly brought out in Bharat Bank
Ltd. v. Employees of Bharat Bank Ltd., 1950 SCR 459.
This root authority has been followed in a catena of judgments.
This judgment refers to a decision of the King's Bench in
C Cooper v. Wilson. The relevant quotation from the said
D
E
F
G
judgment is as follows:-
"A true judicial decision presupposes an existing dispute
between two or more parties, and then involves four
requisites: (1) The presentation (not necessarily orally)
of their case by the parties to the dispute; (2) if the dispute
between them is a question of fact, the ascertainment of
the fact by means of evidence adduced by the parties to
the dispute and often with the assistance of argument by
or on behalf of the parties on the evidence; (3) if the
dispute between them is a question of law, the
submission of legal argument by the parties, and ( 4) a
decision which disposes of the whole matter by a finding
upon the facts in dispute and application of the law of the
land to the facts so found, including where required a
ruling upon any disputed question of law. A quasi-judicial
decision equally presupposes an existing dispute
between two or more parties and involves (1) and (2),
but does not necessarily involve (3) and never involves
(4). The place of (4) is in fact taken by administrative
action, the character of which is determined by the
Minister's free choice."
18. Under our constitutional scheme of things, the judiciary
H is dealt with in Chapter IV of Part V and Chapter V of Part VI.
M.P. STEEL CORP. v. COMMNR. OF CENTRAL EXCISE 313
[R.F. NARIMAN, J]
Chapter IV of Part V deals with the Supreme Court and (:haμter A
Vof Part VI deals with the High Courts and courts subo1Jinate
thereto. When the Constitution uses the expression "court", it
refers to this Court system. As opposed to this court system is
a system of quasi-judicial bodies called Tribunals. Thus, Articles
136 and 227 refer to "courts" as distinct from "tribunals". The B
question in this case is whether the Limitation Act extends
beyond the court system mentioned above and embraces
within its scope quasi-judicial bodies as well.
19. A series of decisions of this Court have clearly held C
that the Limitation Act applies only to courts and does not apply
to quasi-judicial bodies. Thus, in Town Municipal Council,
Athani v. Presiding Officer, Labour Court, (1969) 1 SCC
873, a question arose as to what applications are covered
under Article 137 of the Schedule to the Limitation Act. It was D
argued that an application made under the Industrial Disputes
Act to a Labour Court was covered by the said Article. This
Court negatived the said plea in the following terms:-
"12. This point, in our opinion, may be looked at from E
another angle also. When this Court earlier held that all
the articles in the third division to the schedule, including
Article 181 of the limitation Act of 1908, governed
applications under the Code of Civil Procedure only, it
clearly implied that the applications must be presented F
to a court governed by the Code of Civil Procedure. Even
the applications under the Arbitration Act that were
included within the third division by amendment of Articles
158 and 178 were to be presented to courts whose
proceedings were governed by the Code of Civil G
Procedure. As best, the further amendment now made
enlarges the scope of the third division of the schedule
so as also to include some applications presented to
courts governed by the Code of Criminal Procedure. One H
factor at least remains constant and that is that the
314
A
B
c
D
SUPREME COURT REPORTS
[2015] 7 S.C.R.
applications must be to courts to be governed by the
articles in this division. The scope of the various articles
in this division cannot be held to have been so enlarged
as to include within them applications to bodies other
than courts, such as a quasi judicial tribunal, or even an
executive authority. An Industrial Tribunal or a Labour
Court dealing with applications or references under the
Act are not courts and,they are in no way governed either
by the Code of Civil Procedure or the Code of Criminal
Procedure. We cannot, therefore, accept the submission
made that this article will apply even to applications made
to an Industrial Tribunal or a Labour Court. The alterations
made in the article and in the new Act cannot, in our
opinion, justify the interpretation that even applications
presented to bodies, other than courts, are now to be
governed for purposes of limitation by Article 137."
Similarly, in Nityananda, M. Joshi & Ors. v.