2009 (8) TMI 17 - HC - Central Excise

Condonation of Delay in filing of an appeal application of provisions of section 5 of the Limitation Act, 1963 - learned counsel for the respondent assessee has at the outset placed reliance on a judgment of Hon ble the Supreme Court rendered in the case of Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., and has argued that the provisions of the Limitation Act are necessarily excluded and no benefits could be conferred - learned counsel for the appellant revenue, however, has not been able to meet the aforesaid argument except stating that the Parliament is in the process of amending the law Held that - in the absence of any clause condoning the delay for showing sufficient 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:
1. Appeal filed under Section 35-G of the Central Excise Act, 1944 against an order of the Customs, Excise and Service Tax Appellate Tribunal.
2. Application for condonation of delay in filing the appeal under Section 5 of the Limitation Act, 1963.
3. Argument regarding exclusion of provisions of the Limitation Act based on a judgment of the Supreme Court.
4. Interpretation of the time limit for filing an appeal to the High Court.
5. Examination of the legislative intent behind the provisions for condonation of delay in appeals.

Analysis:
1. The appeal was filed under Section 35-G of the Central Excise Act, 1944, challenging an order of the Customs, Excise and Service Tax Appellate Tribunal. The appellant sought condonation of a 1-day delay in filing the appeal along with an additional application for condonation of an 81-day delay in re-filing the appeal.

2. 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, and no benefits could be conferred. The counsel contended that an appeal to the High Court must be filed within 180 days from the date of communication of the decision or order, making the remedy of seeking condonation of delay under Section 5 of the Limitation Act unavailable.

3. The appellant's counsel was unable to counter the respondent's argument effectively, merely mentioning that the Parliament was considering amending the law. The Court, after hearing both parties, agreed with the respondent's argument, citing the judgment in Hongo India (P) Ltd. and a subsequent decision of the Court. The Supreme Court's interpretation was followed, emphasizing 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, without provision for condoning delays for appeals to the High Court.

4. The Court concluded that the legislative intent, as interpreted by the Supreme Court, excludes the application of Section 5 of the Limitation Act for appeals to be filed before the High Court. As a result, the appeal in question was held to be barred by limitation and was dismissed on that ground.

5. In light of the above analysis, the Court found that the appeal failed due to being time-barred and, accordingly, dismissed the appeal on the grounds of limitation.