2008 (12) TMI 149 - HC - Central Excise

Order of Full Bench - Whether in the light of section 29(2) of Limitation Act, 1963, in any appeal filed under section 130 of the Customs Act, 1962 and / or under section 35G of the Central Excise Act, 1944 High Court is empowered under section 5 of the Limitation Act, 1963 to condone the delay - held that section 5 of Limitation Act will be applicable to appeals filed under section 35G of the Central Excise Act, 1944 - when a statute is silent, the presumption is not drawn automatically about the exclusion of section 29(2) or for that matter section 5 of the Limitation Act - Hence the appeals stand restored to file - The notices of motion for condonation of delay be placed before appropriate Division (Bench) for consideration in accordance with law on its own merit.

Issues Involved:
1. Whether the High Court is empowered to condone the delay in filing appeals under Section 35G of the Central Excise Act, 1944, beyond the prescribed period of 180 days.

Issue-wise Detailed Analysis:

1. Empowerment to Condoning Delay under Section 35G of the Central Excise Act, 1944:

Conflicting Decisions:
The judgment addresses the conflicting decisions of two Division Benches regarding the High Court's power to condone delays in filing appeals under Section 35G of the Central Excise Act, 1944. One Division Bench in Commissioner of Customs v. Sujog Fine Chemicals (India) Ltd. held that the High Court is empowered under Section 5 of the Limitation Act, 1963, to condone the delay. Conversely, another Division Bench in CCE v. Shruti Colorants Ltd. held that the High Court is not empowered to condone the delay using Section 5 of the Limitation Act, 1963.

Identical Provisions:
The court noted that the wordings in both Section 130 of the Customs Act, 1962, and Section 35G of the Central Excise Act, 1944, regarding the filing of appeals and the period of limitation of 180 days are identical.

Section 29(2) of the Limitation Act, 1963:
Section 29(2) of the Limitation Act, 1963, was analyzed, which provides that where any special or local law prescribes a period of limitation different from the period prescribed by the Schedule, the provisions of Sections 4 to 24 of the Limitation Act shall apply unless expressly excluded by such special or local law.

Supreme Court Precedents:
The court referred to the Supreme Court's decisions in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker and State of West Bengal v. Kartick Chandra Das, which clarified the applicability of Section 29(2) of the Limitation Act. These judgments established that unless expressly excluded, the provisions of Sections 4 to 24 of the Limitation Act, including Section 5, apply to special or local laws.

Analysis of Relevant Judgments:
The court analyzed the judgments relied upon by the Division Bench in Shruti Colorants Ltd.'s case, including CC, CE v. Punjab Fibres Ltd. and Nasiruddin v. Sita Ram Agarwal. It was noted that these cases did not address the real scope of Section 29(2) of the Limitation Act.

Full Bench Judgment in CIT v. Velingkar Brothers:
The court referred to the Full Bench judgment in CIT v. Velingkar Brothers, which held that the High Court is empowered to condone delays in appeals under the Income-tax Act, 1961, by applying Section 5 of the Limitation Act. This judgment emphasized that the exclusion of the provisions of Sections 4 to 24 of the Limitation Act cannot be lightly inferred and must be explicitly stated.

Conclusion:
The court concluded that Section 35G of the Central Excise Act satisfies the conditions for the applicability of Sections 4 to 24 of the Limitation Act, as outlined in Mukri Gopalan's case. Since there is no express exclusion of Section 5 of the Limitation Act in Section 35G of the Central Excise Act, the High Court is empowered to condone the delay in filing appeals under Section 35G. The court agreed with the view expressed in Sujog Fine Chemicals (I) Ltd.'s case and held that Section 5 of the Limitation Act applies to appeals filed under Section 35G of the Central Excise Act, 1944.

Restoration of Appeals:
The appeals were restored to the file, and the notices of motion for condonation of delay were directed to be placed before an appropriate Division Bench for consideration in accordance with law on their own merits.

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