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COMMISSIONER OF CENTRAL EXCISE, MEERUT versus M/S. SALORA INTERNATIONAL LIMITED

High Court of Judicature at Allahabad

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Commissioner of Central Excise, Meerut v. M/s. Salora International Limited - CENTRAL EXCESE REFERENCE DEFECTIVE No. 4 of 2001 [2005] RD-AH 2763 (13 September 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Central Excise Reference Application No. (4) of 2001

Commissioner of Central Excise, Meerut Vs.  M/s. Salora International Limited.

Hon'ble R.K. Agrawal, J

Hon'ble P.Krishna, J

(Delivered by Hon. Prakash Krishna, J)

This is an application for condonation of delay under section 5 of the Limitation Act in filing the above reference application under the Central Excise Act 1944 (hereinafter referred to as the Act) in this Court. The office has reported that the present reference application is beyond time by 73 days.

The present application was heard along with the other cases involving the similar issue so far as it relates to the disposal of the application for condonation of delay is concerned.

Heard Shri . S.P. Kesarwani, the learned standing counsel and Shri Subodh Kumar, the learned standing counsel for the Union of India in support of the contention that this Court has power to condone the delay in late filing of the reference application   under section 35 H (1) of the Central Excise Act (hereinafter to referred as the Act) by invoking the provisions of Section 5 of the Limitation Act 1963. Shri A.P. Mathur, the learned counsel for the assessee submitted that in view of the decision of Division Bench of this Court dated 4th of June, 2004 in C.E. Reference Application No. (8) of 2004 M/s. Good Earth Steel Pvt. Ltd. Vs. Commissioner of Central Excise, section 5 of the Limitation Act has no application in reference application filed under section 35 H of the Central Excise Act 1944 and as such High Court has no  power to condone the delay in filing the reference application.

The learned counsel appearing in support of the application for condonation of delay contended that the aforesaid judgment of the Division Bench requires reconsideration. The said ruling  given in the case of M/s. Good Earth Steel Pvt. Limited (supra) has a far reaching consequence and we are facing this problem off and on and decided to hear the matter in depth. Therefore, sufficient opportunity was given to the learned counsel for the parties to place the entire material in support of their respective contentions and the matter was heard at some length. The only issue which requires determination in this judgment is whether the provisions of section 5 of the Limitation Act can by invoked to condone the delay in filing of the reference application under section 35 H of the Act.

The Division Bench of this Court in the case of M/s. Good Earth Steel Pvt. Ltd.(supra). has considered the matter and held that the Act is self contained code and it has provided for a period of limitation for various matters specified in the Act itself. Hence the general provisions of the Limitation Act will not apply despite section 29 (2) of the Limitation Act. To arrive at the aforesaid conclusion it has considered  section 35 H of the Act as well as the following judgments of the Apex Court:-

1. CST vs. Parsan Tools and Plants AIR 1975 S.C. 1039.

2. Gopal Sardar vs. Karuna Sardar (2004) 4 S.C.C. 252.

3. Mukri Gopalan vs. Cheppilat Puthanpurayil Abioobacker, AIR 1995 SC 2272.

4. Anwari Basavaraj Paul vs. Siddaramanah, (1993) 1, SCC 636.

5. Commissioner of Customs vs. Sadiq Fatehah vs. 2000 (121) H.I.T. 815.

The learned standing  counsel besides the above cases, placed reliance on the following rulings:-

1. Vidya Charan Shukla vs. Khub Chand Baghel, AIR 1964 SC 1099,

2. Commissioner of Sales Tax U.P.Lucknow vs.M/s. Parsan Tools and Plants AIR 1970 Allahabad 428 (F.

B). This Full Bench was reversed in AIR 1975 SC 1039,

3. Hukum Dev Narain Yadav Vs. Lalit Narain Mishra AIR 1974 SC 480.

4. Ajijul Haq Kauran Naqvi vs. The State AIR 1980 Allahabad 149 (F.B.).

5. E.Sefton & Co. Pvt. Limited vs. Government of India 1993 (63) ELT 626 (Allahabad).

Before proceeding further it is relevant to have a  look on section 35 H of the Central Excise Act as substituted by Section 128 of the Finance Act, 1999 which is reproduced below:-

"35-H. Application to High Court - (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35-C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.

(2) The Commissioner of Central Excise or the other party applying to the High Court under sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred.

(3) On receipt of notice that an application has been made under sub-section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such application, file, within forty five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the High Court as if it were an application presented within the time specified in sub-section (1).

(4) If, on an application made under sub-section (1), the High Court directs the Appellate Tribunal to refer the question of law raised in the application, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such direction, draw up a statement of the case and refer it to the High Court."

The learned counsel for the applicant submitted that Section 35 H of the Act gives a right to the Commissioner of Central Excise or other party to apply  in the High Court within 180 days of the date upon which he is served with the notice of an order to direct the Appellate Tribunal to refer the High Court any question of law arising from such order of the Tribunal. The said Act being a Special Act, the provisions of Section 5 of the Limitation Act shall be attracted in view of the section 29 (2) of the Limitation Act. There being no such provision restricting the jurisdiction of the High Court and limiting the maximum period of delay which can be condoned as provided in some Statutes, and High Court being a "Court", the delay in filing the reference application can be condoned by it.

The learned counsel for the applicants invited our attention to various other statutes and submitted that the relevant provisions with regard to the filing of the appeal, application etc. can be classified, broadly speaking, in two categories, for the purposes of limitation. There are various statutory provision such as in Income Tax, 1961, Custom Act, Arbitration and Conciliation Act 1996, etc. restricting the power of appellate court or authority as the case may be, to condone the delay upto a maximum prescribed period. They all fall in one category and it can be said that the law makers intended  the inapplicability of section 5 of the Limitation Act by providing the outer limit. If in a given statute, the statute is silent and there is no restriction, restricting the power of a court, the provisions of section 5 of the Limitation Act would be applicable in view of Section 29 (2) of the said Act. Such Statutes, provisions fall in a different category.

Shri Subodh Kumar in support of his argument referred to section 256 (1) of the Income Tax Act 1961. The said section makes a provision for making a reference by a Tribunal to the High Court, at the instance of the assessee or the Commissioner. The application to the Tribunal by the assessee or the Commissioner should be made within 60 days of the date upon which he is served with the notice of an order. The proviso of section 256 (1), which reads as follows, restricts the power of Appellate Tribunal to condone the delay not exceeding 30 days :-

" Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein before specified, allow it to present within a further period not exceeding 30 days."

Further reference was made to Section 128 of the Customs Act 1962. The said Section gives a right of appeal to any person aggrieved by any decision or order passed under the Customs Act by an Officer of Custom lower in rank than a Collector of Customs to appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order. There is also a proviso which says that the Collector (Appeals), if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months.

There is an analogous provision under section 34 (3) of the Arbitration and Conciliation Act 1996. This provides that an application for setting aside an award may be made not after three months have elapsed from the date on which the party making that application has received the arbitration award. The proviso to sub section (3) of section 4 of the aforesaid Act empowers the Court to extend the aforesaid period of three months, if it is satisfied that the applicant was prevented by sufficient cause with a further period of 30 days, but not thereafter.

On the basis of the aforesaid Statutory provisions in different statutes, the learned counsel for the applicant submitted that in these cases there is a specific exclusion clause in the Statute. In view of these specific exclusionary clauses, a Court is not entitled to entertain an application or appeal beyond the period specified in the exclusion clause. Such exclusion clauses do exclude the applicability of the provisions of section 5 of the Limitation Act. Further it was submitted that if in a Statute there is no such exclusionary clause, other conditions of section 29 (2) of Limitation Act having been satisfied, the delay in filing the application or appeal as the case may be, may be condoned by a Court by invoking section 5 of the Limitation Act.

At this juncture it is appropriate to consider  the various cases relied upon by the learned counsel for the applicant in support of the submission that provision of section 5 of the Limitation Act is available to High Court, to condone delay in filing the reference application under section 35 H of the Excise Act.

Vaidya Charan Shukla v. Khub Chand Baghel, AIR 1964 S.C. 1099, was  a case under the Representation of People Act 1951.

The Supreme Court examined the question of applicability of section 29 (2) of the Indian Limitation Act, 1908, in the context of its application  to section 116 -A of the Representation of Peoples Act 1951. The relevant portion for the present purposes of section 116-A of the Representation of Peoples Act reads as follows:-

"Every appeal under this chapter, shall be preferred within a period of 30 days from the date of order of the Tribunal under section 98 or section 99.

Provided that the High Court may entertain an appeal after the expiry of the said period of 30 days if it is satisfied that the appellant had sufficient cause for not preferring appeal within such period."

The majority judgment of the Supreme Court, in the above case while interpreting the phrase " the period of limitation prescribed by the special or local laws is different from the period prescribed there for by the first schedule" has held as follows:-

" In view that a second part might be held to be independent of the first part, which should be complete and capable of operating independently. Unless these tests were satisfied, the conjunction ''and' would have to be read as importing into what follows it, the conditions of circumstances set out earlier as otherwise even the first part would be incomplete (para 9)."

"Apart from the grammatical construction, there is no anomaly in Ss. 4 to 25 of the Limitation Act applying to the first part of the section and only some of them applying to the second part thereof. Those proceedings to which the first part applies, by fiction, the period prescribed in the special or local law is treated as prescribed  in the first Schedule itself. There cannot possibly be any reason why S. 3 of the Limitation Act in toto shall not apply to them. But the same cannot be said in the case of the proceedings of a different type not provided  for in the first schedule. So, the Legislature specified the sections applicable to them and excluded the general sections which relate to legal disabilities, acknowledgments, part payments and others specified therein." (para 25)

The aforesaid judgment has made section 12 (2) of the Limitation Act applicable to appeals under section 116  A of the Representation of Peoples Act. The Supreme Court in the case of Hukum Dev vs.  Lalit Narain (Supra) considered its aforesaid judgment in the case of Vidya Charan Shukla and has held with reference to the Limitation Act 1963 in para 17 as follows:-

"Though S. 29 (2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought  to our notice where S.29 (2) has been made applicable  to an election petition filed under S.81  of the Act by virtue  of which either Section 4, 5 or  12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under S.81  of the Act, S.29 (2) would be attracted, and what we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words "expressly excluded" would mean that there must be an express  reference made in the special or local law to the specific  provisions of the Limitation Act of which the operation is to be excluded. As usual  the meaning given  in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case  the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern  the several matters provided by  it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement  the  provisions  of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to  24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what  extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."

A controversy arose before the Supreme Court as to whether the provisions of Limitation Act 1963  can be invoked to extend the period of limitation for filing a revision under section 10 of the U.P. Sales Tax Act. The Supreme Court took into consideration the following factors after examining the scheme and language of section 10 of the U.P. Sales Tax Act for coming to the conclusion that the legislature has deliberately excluded application of principle underlying the sections 5 and 14 of the Limitation Act except to the extent as mentioned in sub section (3-B) of the section 10 of the Sales Tax Act. It took into consideration that delay in disposal of Revenue matters adversely affects the state in flow of  Revenues and Financial stability of State. Section 10 is therefore designed to ensure speedy and final determination of physical matters within a reasonably certain time schedule".

It has also taken into account that the period of limitation for filing the revision as provided for under section 10 of  the U.P. Sales Tax Act was one year and the revising authority may on proof of sufficient cause entertain an application within a further period of 6 months.

The Supreme Court has laid down the following proposition of law in the case of Parson Tools and Plants (supra) :-

"Thus the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only up to a specified time-limit and no further, then the Tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act."

The next case relied upon by the learned counsel, the Keral State Electricity Board (supra) has no application to the controversy involved in the present case.

A Full Bench decision of this Court in the case of Ajijul Haq Kaushal (Supra) has held that in view of section 29 (2) of the Limitation Act 1963, the provisions of Section 4 to Section 24 of the Limitation Act would apply even in the case of special or local law unless their application is specifically excluded by such special or local law. It has been held that delay can be condoned in appropriate cases in the proceedings under section 96 (1) of the Code of Criminal Procedure.

This Court in the case of E. Sefton & Co. Pvt. Ltd. (Supra)  has held that limitation is a matter of procedure and delay in filing appeals under section 35 of the Central Excise and Salt Act can be condoned in the appropriate cases.

At this juncture the departure made by the Limitation Act 1963, from the earlier Limitation Act 1908 is to be noted. The Supreme Court has pointed this difference in the case of Gopal Sardar vs. Karuna Sardar (2004) 4 S.C.C. 252.  This case is an authority for the proposition that a departure has been made in Section 29 (2) of the Limitation Act of 1963 from Indian Limitation Act, 1908. Under the Indian Limitation Act 1908, Section 29 (2) (b) provided for the purpose of determining for a period of Limitation prescribed for any suit, appeal or application by any special law or local law the application of Section 5 of the Limitation Act was specifically and in clear terms excluded. Under Section 29 (2) of the present Limitation Act 1963, section 5 applies in case of special or local law to the extent to which it is not expressly excluded by special or local law. It has been further held that even in the case, where the special law does not exclude the provisions of Section 4 to 24 of the Limitation Act by an expressed reference, it would nonetheless be open to the court to examine whether or and to what extent the nature of those provisions or the nature of the subject matter of scheme of special law exclude their operation.

The Supreme Court in the case of  Gopal Sardar  has considered its earlier judgment given in the case of CST v. Parson Tools & Plants (Supra),  Hukun Dev Narain Yadav v.  Lalit Narain and other judgments. It has noted the departure made in Section 29 (2)  of the Limitation Act in comparison to old Limitation Act, 1908. The relevant paragraph is reproduced below:-

"An important departure is made in Section 29 sub-section (2) of the Limitation Act of 1963. Under the Indian Limitation Act, 1908 Section 29(2) (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local  law  the application of Section 5 of the Limitation Act was specifically and in clear terms excluded, but under Section 29(2)  of the present Limitation Act, Section 5 shall apply  in case of special or local law to the extent to which it is not expressly excluded by such special or local law.  In other words, application of Section 5 of the Limitation Act stands excluded only when it is expressly excluded  by the special or local law.  The emphasis of the  argument by the learned counsel, who argued for the proposition that   Section 5 of the Limitation Act is applicable to an application made for enforcement of rights of pre-emption under Section 8  of the Act was on the ground that the Act has not expressly excluded the application of Section 5  of the Limitation Act."

Ultimately it has reached to the following conclusion which is reproduced below:-

"Considering the scheme of the Act being a self-contained code in dealing with the matters arising under Section 8 of the Act and in the light of the aforementioned decisions of this Court in the case of  Hukumdev Narain  Yadav, Anwari Basavaraj  Patil  and  Parson Tools it  should be construed that there has been exclusion  of application of Section 5  of the Limitation Act to an application under Section 8 of  the Act.  In view of  what is stated above, the non-applicability of  Section 5 of the Limitation Act to the proceedings under  Section 8 of the Act is certain and sufficiently clear. Section 29(2)  of the Limitation Act as to the express exclusion  of Section 5  of the Limitation  Act and the specific period of  limitation  prescribed under  Section 8 of the Act without providing for either extension of time or  application of Section 5 of the Limitation Act or its principles can be  read together  harmoniously.  Such reading does not lead to any absurdity  or  unworkability or frustrating the object of the Act.  At any rate, in the light of  the three-Judge  Bench decision of this Court in Hukumdev  Narain Yadav case  and subsequently  followed in Anwari Basavaraj Patil  case even  though special or local law does not state in so many words  expressly that Section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the scheme  of the Act and having regard to various provisions such express exclusion could be gathered.  Thus, a conscious and  intentional omission by the legislature to apply  Section 5 of the Limitation Act to the  proceedings under Section 8 of the Act, looking to the scheme of  the Act, nature of right  of pre-emption and express application of Section 5 of  the Limitation Act to the other provisions under the Act, itself means and amounts to "express exclusion" of it satisfying the requirement of Section 29(2) of the limitation Act."

It has come to the conclusion that its judgment given in the case of  Mkri Gopalan v. Cheppilat (1995) 5 SCC 5   cannot be applied in support of the submission that Sec. 5 of the Limitation Act is applicable to a proceeding under a special Act, with the observation that in ''any case'  the case of Mukri Gopalan  was decided by two learned judges of the Court.

Recently the Supreme Court in the case of L.S. Synthetic Ltd. vs. Fair Growth Financial Services Limited, Judgment Today 2004 (7) S.C. 254 has considered the question as regards to the applicability of Limitation Act to the proceedings under the Special Code (Trial and Offences Relating to Transaction in Securities) Act 1992. It has been observed by the Apex Court that the Limitation Act 1963 is applicable only in relation to certain applications and not all applications despite the fact that the words "other proceedings" added in the long title of the Act 1963. It has been held that the provisions of Limitation Act are not applicable to the proceedings before the bodies other than the courts, such as quasi judicial Tribunal or even in a Tribunal. The relevant portion is quoted below:-

"The provisions of the said Act are not applicable to the proceedings before bodies other than courts, such as quasi-judicial tribunal or even an executive authority. The Act primarily applies to the civil proceedings or some special criminal proceedings. Even in a Tribunal, where the Code of Civil Procedure or Code of Criminal Procedure is applicable; the Limitation Act, 1963 per se may not be applied to the proceedings before it. Even in relation to certain civil proceedings, the Limitation Act may not have any application. As for example, there is no bar of limitation for initiation of a final decree proceedings or to invoke the jurisdiction of the court under section 151  of the Code of Civil Procedure or for correction of accidental slip or omission in judgments, orders or decrees; the reason being that these powers can be exercised even suo motu by the court and, thus, no question of any limitation arises.

In Fair Growth Investment Limited vs. The Custodian JT (2004) Vol.  9 S.C. 124 the Supreme Court has followed its earlier judgment given in the case L.S. Synthetic Ltd. (Supra) and has made the following observation with regard to the section 29 (2) of the Limitation Act :-

"Finally, Section 29 (2) of the Limitation Act speaks of application of the provisions contained in Sections 4 to 24 "only in so far as, and to the extent to which they are not expressly excluded by such special or local laws". This language, together with our earlier reasoning, particularly with regard to L.S. Synthetics, would answer the further question raised by the appellant namely, whether the question of exclusion of the provisions of the Limitation Act must be separately considered with reference to different provisions of a Special/Local Act or in connection with the provisions of the Special/Local Act, as a whole, by affirmation of the first alternative. We are therefore not called upon to decide whether claims either preferred for the first time before the Special Court or transferred to the Special Court under Section 9-A (2) would attract the provisions of Sections 4 to 24 of the Limitation Act. It is enough for the purpose of this appeal to hold that Section 29(2) of the Limitation Act, 1963 does not apply to proceedings under Section 4 (2)  of the Special Courts (Trial of Offences Relating to Transactions in Securities), Act 1992. Since the appellant's petition of objection had been filed much beyond the period prescribed under that Section, the Special Court was right in rejecting the petition in limine. The appeal is accordingly dismissed but without any order as to costs.

In this case the Supreme Court has considered its various earlier judgments including that too given in the case of Vidya Charan Shukla and Hukum Dev Narain (Supra) and also in the case of Gopal Sardars vs. Karuna Sardar, (2004), 4,SCC 252. This case is an authority for the proposition that a departure has been made in Section 29 (2) of the Limitation Act of 1963 from Indian Limitation Act, 1908. Under the Indian Limitation Act 1908 Section 29 (2) (b) provides for the purpose of determining for a period of Limitation prescribed for any suit, appeal or application by any special law or local law the application of Section 5 of the Limitation Act was specifically and in clear terms excluded. Under Section 29 (2) of the present Limitation Act, 1963 Section 5 applies in case of special or local law to the extent to which it is not expressly excluded by special or local law. It has been further held that even in the case, where the special law does not exclude the provisions of Section 4 to 24 of the Limitation Act by an expressed reference, it would nonetheless be open to the court to examine whether or and to what extent the nature of those provisions or the nature of the subject matter of scheme of special law exclude their operation. In this case also the Supreme Court followed its dictum as given in the case of M/s Parson Tools (supra) and has come to the conclusion that the benefit of Section 5 of the Limitation Act can not be extended in late filing of the application under Section 8 of the West Bengal Land Reforms Act, 1955. The Court examined the scheme of West Bengal Land Reforms Act and came to the conclusion that the scheme of the Act impliedly excludes the application of Section 5 of the Limitation Act to the aforesaid Act.

In the above case the Supreme Court was considering the question of condonation of delay for filing an application in the nature of suit beyond the prescribed time for the enforcement of right of preemption under the provisions of West Bengal Land Reforms Act 1955. It examined the nature of right of preemption and also the West Bengal Land Reforms Act and was of the view that right of preemption is statutory right and is a week one to be exercised strictly in terms of section 8 and considerations of equity do not apply. It was held that the delay in filing the said application would not be condoned by invoking the provisions of section 5 of the Limitation Act. In view of  very week nature of right of preemption it was held that the applicability of the provisions of section 5 of the Limitation Act read with section 29 (2) of the Limitation Act stands impliedly excluded. The application for enforcement of right of preemption by a purchaser is required to be filed within 4 months of the date of such transfer under section 8 of the W.B. Land Reforms Act 1955. The provisions of Limitation Act were made applicable by express provision in filing the appeal and revision that section 14-H and section 19 of the Act. Further, it is clear that there was no specific exclusion of the Limitation Act in section 8 of that Act which provides the filing of application in the nature of a suit for enforcement of right of preemption by a purchaser. But even then the Supreme Court held that the provisions of the Limitation Act stands excluded so far as the delay in filing of the application under section 8 of the aforesaid Act is concerned.

In the light of the above discussion it is necessary for us to have a look at the relevant provisions of Central Excise Act as amended by Finance Act 1999. It cannot be doubted that the Central Excise Act, 1944 is a Special Act and is also a self contained Act.

Section 35 of the Act provides filing of appeal before the Commissioner (Appeals). Section 35 (1) is quoted below:-

"Section 35. Appeals to Commissioner (Appeals)- (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals) (hereafter in this Chapter referred to as the (Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order:

Provided that the Commissioner (Appeals) may, 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.

(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner."

Thus an appeal can be filed before the Commissioner (Appeals) within a period of 60 days. But the Commissioner (Appeals) may allow it to be presented within a further period of 30 days. The aforesaid provisions is analogous to section 128 of the Customs Act. In view of the above provision the Commissioner (Appeals) is empowered to condone the delay  only up to maximum period of 30 days and not beyond it. However, section 35 H with which we are presently concerned is differently worded in as much as there is no such restriction on the power of the High Court not to condone the delay beyond a certain period. Section 35 H of the Act has been quoted in the earlier part of this judgment.

Section 35B of the Central Excise Act deals with the provisions relating to appeals to the Appellate Tribunal. Sub Section (3) of Section 35 B provides that every appeals shall be filed within three months from the date on which the order sought to be appealed against is communicated. Sub Section 5 of the Section 35  B reads as follows:-

"The Appellate Tribunal may admit an appeal or permit the filing of memorandum of cross objections after the expiry of the relevant period referred to in Sub Section 3 or  Sub Section 4, if it is satisfied that there was sufficient cause for not presenting it within that period."

The Division Bench in the case of M/s.Good Earth Steel Pvt. Limited (supra) has taken into consideration section 35-H and Section 35 E (3) of the Act and has noticed that the provisions of Limitation Act will not apply to the proceedings under the Central Excise Act and the Parliament deliberately provided for long period of limitation of 180 days under section 35-H and a perusal of various provisions thereof shows that the Act is a self contained Code and it has provided for a period of limitation for various matters specifically in the Act itself. There is no doubt that the Act, 1944 is a self contained Act and it has provided different periods of limitation for filing appeals etc. under its various sections. So far as the appeal before the Commissioner (Appeals) is concerned, it has given a limited power to the Commissioner (Appeals) to condone the delay. But there is no such restriction while making the provisions of Section 5 of the Limitation Act applicable so far as it relates to the filing of appeal and cross appeals before the Tribunal is concerned.

Upshot of the above discussion is that the view taken by the learned judges in the case  of  M/s. Good Earth Steel Pvt. Limited   in accordance with the various pronouncements  of the Supreme Court on the subject and we are in respectful agreement with them. It is not open for us to disagree with the view of the Learned Judges on the ground that a possible aspect of the matter was not considered  or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier, as held by the Supreme Court in the case of   State of Bihar v. Kalika Kuer @ Kalika Singh AIR 2003 S.C. 2443.

In the result we are of the opinion that  the provision of  Section 5 of the Limitation Act cannot be invoked to condone the delay, if any, in filing a reference application under section 35 H of Central Excise Act. The application is rejected accordingly.

Dt.13.9.2005

LBY


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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