2009 (3) TMI 624 - AT - Service Tax

Rectification of mistake - Condonation of delay - Section 35C(2) of the Central Excise Act does not provide for condonation of delay of ROM applications beyond the period of 6 months prescribed therein - It is pertinent to note, in this context, that the period of limitation prescribed under the above provision was four years prior to 2002, which was reduced by Parliament to six months under Section 140 of the Finance Act, 2002 - Had it been the intention of the legislature to allow the appellants to seek condonation of any delay beyond the above period of six months, it would certainly have been provided for the same when the provision was amended - In the result we dismiss the ROM application as time-barred - It goes without saying that the application for condonation of delay also stands dismissed.

Summary

Issues:
1. Rectification of mistake in the final order passed by the Tribunal.
2. Condonation of delay in filing the rectification of mistake application.

Issue 1: Rectification of Mistake
The Tribunal was tasked with addressing two applications - one for rectification of mistake in the final order dated 12-8-2004 and the other for condonation of delay in filing the rectification of mistake application. The delay in filing the rectification of mistake application was the key point of contention. The applicant argued that the time spent pursuing a wrong remedy before the High Court should be excluded in calculating the period for filing the rectification of mistake application. The applicant cited various legal precedents where Section 14 of the Limitation Act was applied to compute the period for filing appeals or rectification applications under different statutory provisions. The applicant also invoked the inherent power of the Tribunal for condonation of delay, which was opposed by the JCDR citing the limitations of the Tribunal's powers under the statute.

Issue 2: Condonation of Delay
The JCDR contended that the period of limitation prescribed for the rectification of mistake application under Section 35B of the Central Excise Act is six months, and there is no provision for condonation of delay beyond this period. Legal precedents were cited to support the argument that appellate authorities cannot condone delays beyond the prescribed period specified by the statute. The JCDR highlighted a case where the High Court upheld a restrictive amendment to Section 35(1) and emphasized that the Tribunal's powers are limited to what is prescribed under the statute. The Tribunal, after considering the submissions, found that the rectification of mistake application was indeed beyond the prescribed six-month period under Section 35C of the Central Excise Act, and there was no provision for condonation of delay. The Tribunal differentiated the present case from previous cases where Section 14 of the Limitation Act was applied to compute the period for filing appeals or rectification applications under statutory provisions that allowed for condonation of delay.

In conclusion, the Tribunal dismissed the rectification of mistake application as time-barred, emphasizing that the application for condonation of delay also stood dismissed. The decision was based on the statutory limitation of six months for filing such applications under Section 35C of the Central Excise Act, without provision for condonation of delay beyond this period. The Tribunal underscored that its powers are confined to what is prescribed by the statute and cannot extend to condoning delays beyond the statutory timeframe.