Supreme Court Stays Bombay HC Order Refusing to Condone Delay in Central Excise Appeals Filed During Pendency of Rectification Applications [Read Judgement]
Supreme Court stayed the Bombay High Court order which refused to condone delay in Central Excise appeals filed while its CESTAT rectification application was still pending.
The Supreme Court has stayed the Bombay High Court order which refused to condone delay in Central Excise appeals where the High Court had held that an assessee cannot file a rectification application before CESTAT and also file a High Court appeal at the same time.
Sanvijay Rolling and Engineering Ltd., filed appeals under Section 35G of the CentralExcise Act against a CESTAT order. The company said it received the order and the 180 days ended on 30.08.2022 but it filed the appeals around 27.02.2023 and sought condonation of 184 days delay.
In between, the petitioner had also filed a rectification of mistake application before CESTAT under Section 35C(2). The counsel argued that since rectification was pending, appeal should be treated as within time by considering rectification order date as relevant.
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The department opposed and said limitation starts after rectification is decided, and appeal filed during pendency of rectification is not maintainable.
The Division Bench of Justice Anil L. Pansare and Justice Siddheshwar S. Thombre observed that the assessee was trying to avail two remedies simultaneously, one by seeking rectification under Section 35C(2) and another by filing an appeal under Section 35G.
The court observed that the scope of rectification is limited to mistake apparent on record while an appeal under Section 35G lies only on a substantial question of law and the assessee must decide which remedy it wants to pursue. The court observed that allowing both remedies together would permit contrary stands and may also result in conflicting views by two courts.
The court also rejected the argument based on Section 14 of the Limitation Act observing that Section 14 applies only when a litigant is prosecuting a remedy in a forum which lacks jurisdiction or is unable to entertain the matter.
The court observed that it was not the assessee’s case that the rectification proceedings were before a wrong forum. The CESTAT had jurisdiction and the application was entertained. The court also observed that the assessee itself relied on authorities showing that limitation begins from the rectification order date which showed it was aware of the legal position.
The court rejected all the delay condonation applications and imposed costs of Rs. 5,000 in each application stating that the applicant had unnecessarily consumed judicial time.
The company then filed SLP in Supreme Court. On 06.02.2026, the Bench of Justice P.S. Narasimha and Justice Alok Aradhe issued notice and stayed operation of the High Court order till further hearing.
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