2009 (8) TMI 1187 - HC - Central Excise

Condonotaion of delay - delay in filing appeal - Section 5 of the Limitation Act, 1963 - Held that - an appeal to the High Court should be made within a period of 180 days only from the date of communication of the decision or order - icient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. Therefore, the instant appeal has to be held to be barred by limitation.

Summary

Issues:
- Appeal filed under Section 35-G of the Central Excise Act, 1944 against order dated 31.12.2007 by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi.
- Application under Section 5 of the Limitation Act, 1963 seeking condonation of 85 days delay in filing the appeal.
- Another application under Section 151 CPC seeking condonation of 6 days delay in re-filing the appeal.
- Interpretation of the provisions of the Limitation Act in relation to filing appeals in the High Court.
- Exclusion of Section 5 of the Limitation Act for filing appeals before the High Court.

Analysis:

The appeal in question was filed under Section 35-G of the Central Excise Act, 1944 against an order dated 31.12.2007 by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi. Along with the appeal, applications were made seeking condonation of delays in filing the appeal under Section 5 of the Limitation Act, 1963 and Section 151 CPC. The respondent's counsel relied on a judgment of the Supreme Court in the case of Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., arguing that the provisions of the Limitation Act are excluded for filing appeals in the High Court. The counsel contended that appeals to the High Court should be made within 180 days from the date of communication of the decision or order, and thus, seeking condonation of delay under Section 5 of the Limitation Act is not permissible.

Upon considering the arguments presented, the Court found merit in the respondent's preliminary objection. Referring to the judgment in Hongo India (P) Ltd., the Court noted that appeals to the High Court must be made within 180 days from the date of communication of the decision or order. The Supreme Court's observation indicated that the legislature intended the Appellate Authority to entertain appeals by condoning delays only up to 30 days after the initial 60-day limitation period for filing appeals. However, there is no provision for condoning delays for appeals to be filed before the High Court. Consequently, the Court held that in the absence of a clause allowing for condonation of delays after the prescribed period, Section 5 of the Limitation Act is entirely excluded. Therefore, the appeal in question was deemed to be barred by limitation and subsequently dismissed.

In conclusion, the Court's decision was based on the interpretation of the provisions of the Limitation Act concerning the filing of appeals in the High Court. The exclusion of Section 5 of the Limitation Act for appeals before the High Court was a crucial factor leading to the dismissal of the appeal due to being time-barred.