2011 (1) TMI 18 - HC - Central Excise

Last day being holiday - Period of limitation for filing an appeal before Commissioner (Appeals) - The appellate authority by order dated 8.6.2007 came to hold that the appeal had been preferred on the 91st day, one day beyond the condonable period of limitation and, accordingly, rejected the application for condonation of delay which was filed along with the memorandum of appeal. Held that - it is clear as crystal that Section 4 of the Limitation Act, 1963 and Section 10 of the General Clauses Act, 1897 enable a person to do what he could not have done on a holiday on the next working day. If the last day for filing an appeal expires on a holiday when the Court is closed and the memorandum of appeal cannot be presented, it is obligatory on the part of the appellant to present the same day when the Court reopens. It is also evincible that where Section 4 of the Limitation Act is not applicable, Section 10 of the General Clauses Act comes into aid by extending period to the next day of reopening of the Court. The submission of learned counsel for the petitioner is that as limitation period of 60 days expired on 28th October, 2006 which was a Saturday, the petitioner was entitled to benefit of 28th and 29th October, 2006 being Saturday and Sunday and, thereafter, the further period of 30 days would commence and, therefore, the appeal was presented within the period of limitation. The said proposition, in our considered opinion, runs counter to the principles which are culled out from the authorities we have referred to hereinbefore. We are disposed to think that the Commissioner as well as the revisional authority has correctly computed the period of limitation and appositely opined that the memorandum of appeal was presented on the 91st day and hence, the Commissioner could not have condoned the delay even if sufficient grounds have been shown beyond 30 days, i.e., 90 days in toto.

Summary

Issues Involved:
1. Whether the appeal was barred by limitation.
2. Whether the computation of the limitation period was correct.
3. Whether the authorities had the power to condone the delay beyond the prescribed period.

Detailed Analysis:

1. Whether the appeal was barred by limitation:
The petitioner, a merchant exporter, challenged the order dated 8.1.2010 passed by the Joint Secretary, Ministry of Finance, which upheld the Commissioner's order dated 8.6.2007 dismissing the appeal as time-barred. The Commissioner found that the appeal was filed on the 91st day, one day beyond the condonable period of 30 days after the initial 60 days, and thus rejected the application for condonation of delay.

2. Whether the computation of the limitation period was correct:
The petitioner received the adjudicating officer's order on 29.8.2006 and filed the appeal on 28.11.2006. The petitioner argued that the 60th day fell on a Saturday (28.10.2006), and thus, the appeal should be considered timely if filed by the following Monday. The respondents contended that the appeal should have been filed by 27.11.2006 to benefit from the weekend extension. The court referred to precedents, including *Manohar Joshi v. Nitin Bhau Rao Patil and Anr.*, *Ramakant Mayekar v. Celine D'Silva*, and *Jindal Steel and Power Ltd. and Anr. v. Ashoka Alloy Steel Ltd. and Ors.*, clarifying that the computation of limitation excludes the day of receipt of the order and does not extend the period by weekends or holidays unless the last day itself is a holiday.

3. Whether the authorities had the power to condone the delay beyond the prescribed period:
The court cited *Singh Enterprises v. Commissioner of Central Excise, Jamshedpur* and *Commissioner of Customs and Central Excise v. Hongo India Pvt. Ltd. and Anr.*, emphasizing that the appellate authority has no power to condone delays beyond the additional 30 days after the initial 60 days. The legislative intent is clear in providing a strict timeframe, and Section 5 of the Limitation Act is explicitly excluded. The court upheld the authorities' decisions, finding no error in their refusal to condone the delay.

Conclusion:
The court concluded that the appeal was indeed filed beyond the permissible period and that the method of computation adopted by the Commissioner was correct. The authorities rightly declined to condone the delay, and the writ petition was dismissed with costs assessed at Rs. 20,000.