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M/S MODI DISTILLERY THRU' ITS DY. G.M. versus CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL & OTHERS

High Court of Judicature at Allahabad

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M/S Modi Distillery Thru' Its Dy. G.M. v. Customs, Excise & Service Tax Appellate Tribunal & Others - CENTRAL EXCISE APPEAL DEFECTIVE No. 1 of 2004 [2007] RD-AH 8662 (8 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

C.J.'s Court

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

APPELLATE JURISDICTION

Central Excise Appeal No.1(Defective) of 2004

M/s. Modi Distillery

Through its Deputy General Manager(Commercial),

Modi Distillery

Ghaziabad.

......Appellant

Versus

1.Customs, Excise & Service Tax Appellate Tribunal, West Block No.2, R.K.Puram, New Delhi-110 066.

2.Office of the Commissioner (Appeals), Customs & Central Excise, Ghaziabad.

3.Assistant Commissioner (Service Tax), Central excise, Division-I, Ghaziabad.

...Opposite Parties

Mr. Shakti Swarup Nigam, learned counsel for the appellant.

Mr. S.K.Mishra, learned Standing Counsel for the Opposite parties.

CORAM: Hon'ble H.L. Gokhale, C.J.

                   Hon'ble R.K.Agrawal, J.

Date: 8.5.2007.

P.C.

1. The question raised in this appeal is with respect to the judgement and order passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi dated 7th July, 2003 whereby the Tribunal has confirmed the order passed by the Commissioner(Appeals). The Commissioner(Appeals) had dismissed the appeal filed by the appellant as being beyond the period of limitation.  Section 35 of the Central Excise Act, 1944, hereinafter referred to as 'the Act', provides for a period of sixty days for filing an appeal against the order in original and it further provides that if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. There is no dispute on facts that the appeal which was sought to be presented by the appellant was beyond 90 days.  

2. Mr. Nigam, learned counsel for the appellant,  submits that there is no specific exclusion of the Limitation Act or provision thereof nor are there any words under Section 35 of the Act saying that further delay cannot be condoned.  He, therefore, submits that there was an error on the part of the Tribunal in confirming the order of the Commissioner(Appeals).

3. As far as the above statement of Mr. Nigam is concerned, a Division Bench of this Court has already taken a view in Doaba Rolling Mills(P) Ltd. v. CEGAT, New Delhi, 2004(169) E.L.T.258(All.) wherein the Division Bench has held that if the statute provides for a period of limitation and further maximum period for which the delay can be condoned, the authority cannot extend the same.

4. Mr. Nigam submitted that in the absence of specific words of exclusion further period of delay could be condoned.  He relied upon a judgement of the Apex Court in the case of Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5. In paragraph 8 the Apex Court has laid down that for giving benefit under Section 29(2) of the Limitation Act, two requirements are to be satisfied ;

(i) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application.

((ii) The prescribed period of limitation under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act.

5. In the present case there is a prescribed period of limitation and there is also a further period of extension specifically provided under the statute.  We are of the view that the proposition laid down by the Apex Court is not in any way helpful to extend the limitation under Section 35 of the Act.  We have no reason to take a view different from what has been taken by the Division Bench of this Court in the case of  Doaba Rolling Mills(P) Ltd. (supra).

6. The appeal is dismissed.

8.5.2007

mt

                                  (R.K.Agrawal)   Chief Justice


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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