2004 (2) TMI 81 - HC - Customs

Appeal to Commissioner (Appeals) - Limitation - Interpretation of statute - Whether the provision of Section 128 of the Customs Act, 1962 completely bars the Commissioner (Appeals) from condoning the delay beyond a period of 30 days even in a deserving case and that despite the order made by the Commissioner (Appeals) is it incumbent upon the Tribunal to consider the appeal on merits? HELD THAT - In the instant case, a separate period of limitation is provided, as also the period for which delay can be condoned. The Legislature was aware about the provisions contained in Section 5 of the Limitation Act, yet with an intention to curb the delay in taxation matters, it has specially provided that after the statutory period, if there is delay of 30 days, on showing sufficient grounds for delay of 30 days, can be condoned and no further. Thus, applicability of Section 5 of the Limitation Act is specifically excluded. The expression expressly excluded in sub-section (2) of Section 29 of the Limitation Act means an exclusion by express words, i.e. by express reference and not exclusion as a result of logical process of reasoning. In the instant case, there is no question of implied exclusion but, it specifically provides a different period of limitation, as also the period during which, if delay has occurred, it could be condoned. Applicability of Sections 4 to 24 of the Limitation Act (inclusive) one will have to refer to sub-section (2) of Section 29 of the Limitation Act, 1963. It specifically states that these provisions shall apply only so far as and to the extent to which, they are not expressly excluded by special or local law. Reading the language of Section 128 of the Customs Act and Section 5 of the Limitation Act, it is very clear that extension of time for a period of 30 days only can be condoned subject to satisfaction and not beyond that. From an examination of Section 128 of the Customs Act, it is very clear that Section 5 of the Limitation Act is expressly excluded as a specific provision is made in Section 128. Considering the scheme, and language of the Sales Tax Act, it does appear that the application of Section 5 of the Limitation Act, is excluded. This, in the opinion of the Court, is the only possible interpretation as the legislative intent is clear. The period of 60 days is prescribed as limitation for preferring an appeal, secondly the appellate authority has no discretion to extend this period beyond the further period of 30 days, even if sufficient cause is shown. Reading the Section, it is very clear that the Act gives no jurisdiction to the appellate authority to extend the limitation, even in a suitable case for a further period of more than thirty days. It is also required to be noted that delay in disposal of revenue matters adversely effects the steady inflow of revenue and financial stability of the State. The scheme of Section 128 of the Act is, therefore, designed to ensure speedy and final determination of fiscal matters within a certain time schedule. It may apparently seem that the provision is harsh but merely because the provision is harsh it cannot be said to be bad. Be that as it may, from the scheme of the Act and the language used in Section 128, the intention of the legislature to exclude the unrestricted application of principles of Section 5 is manifestly clear. The provision contained in the Limitation Act, which the legislature did not, after due application of mind, incorporate in the Sales Tax Act, cannot be imported into it by analogy. The Will of the legislature is the supreme law of the land and commands perfect obedience . A further period of 30 days can be extended and not further. Thus when the maximum time-limit is specified or a condonable period is prescribed, then only the delay within the specified time or condonable period can be condoned, and no further. In our opinion, considering the aforesaid, the Tribunal has committed no error in dismissing the appeal.

Summary

Issues Involved:
1. Whether Section 128 of the Customs Act, 1962 bars the Commissioner (Appeals) from condoning the delay beyond 30 days.
2. Whether the Tribunal is required to consider the appeal on merits despite the Commissioner (Appeals) dismissing it as time-barred.

Summary:

Issue 1: Condonation of Delay Beyond 30 Days u/s 128 of the Customs Act, 1962

The appellant challenged the order-in-original dated 5th November 2001, which was received on 7th November 2001, by filing an appeal on 13th April 2002. The Commissioner of Customs (Appeals) dismissed the appeal as time-barred, citing Section 128 of the Customs Act, 1962, which allows a 60-day period for filing an appeal, extendable by a further 30 days if sufficient cause is shown. The Tribunal upheld this decision, referencing the case of M/s. Abhishek Auto Industries v. C.C., Mumbai (Import).

The appellant argued that Section 5 of the Limitation Act, 1963 should apply, allowing for condonation of delay beyond the 30-day period. However, the court noted that the Customs Act is a complete code in itself, with specific provisions for limitation periods. The court emphasized that the right to appeal is statutory and must be exercised within the stipulated period. The Supreme Court in Collector of C.E., Chandigarh v. Doaba Co-operative Sugar Mills and other cases has held that authorities under the Act are bound by its provisions, and Section 5 of the Limitation Act is expressly excluded by the specific provisions of Section 128 of the Customs Act.

Issue 2: Tribunal's Obligation to Consider Appeal on Merits

The appellant contended that the Tribunal should have considered the appeal on merits despite the Commissioner (Appeals) dismissing it as time-barred. The court, however, reiterated that the statutory period for filing an appeal and the condonable period are clearly defined in Section 128 of the Customs Act. The court referred to the Supreme Court's decision in Commissioner of Sales Tax v. Parson Tools & Plant, which held that if a special statute prescribes a specific period of limitation and a maximum condonable period, the tribunal has no jurisdiction to extend it further.

The court concluded that the Customs Act's scheme and language indicate that the legislature intended to exclude the unrestricted application of Section 5 of the Limitation Act. The Tribunal, therefore, committed no error in dismissing the appeal as time-barred, adhering to the legislative intent to ensure speedy and final determination of fiscal matters within a certain time schedule.

Conclusion:

The court upheld the Tribunal's decision, affirming that Section 128 of the Customs Act, 1962, bars the Commissioner (Appeals) from condoning delays beyond 30 days and that the Tribunal is not required to consider the appeal on merits if it is dismissed as time-barred by the Commissioner (Appeals).