2004 (4) TMI 93 - HC - Central Excise

Appeal to Commissioner (Appeals) - Condonation of delay in filing an appeal u/s 35 - Classification of Pan Masala (Gutkha) for excise duty purposes - Applicability of Section 5 of the Limitation Act, 1963 to appeals under the Central Excise Act, 1944 - HELD THAT - On an examination of the provisions of Section 35 of the said Act, it is clear that the provisions of the Limitation Act are necessarily excluded, at least beyond the said thirty (30) day period. As such the benefits conferred in the Limitation Act, 1963 cannot be called in aid to supplement the provisions of the said Act. The Supreme Court in Hukumdev Narain Yadav 1973 (12) TMI 92 - SUPREME COURT has made it clear that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. Having examined the provisions of Section 35 of the said Act we have come to the conclusion that operation of Section 5 of the Limitation Act, 1963 is excluded to the extent indicated above. We find that there is no distinction between the present case and that of Delta Impex 2004 (2) TMI 81 - HIGH COURT OF DELHI . The Tribunal was correct in upholding the decision of the Commissioner (Appeals) that the Commissioner (Appeals) had no power to condone the delay beyond the further period of 30 days from the expiry of the time within which the appeal ought to have been filed. The Central Excise Act, 1944 is a complete code and the provisions of Section 35 clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to entertain any application for condonation of delay or to entertain the appeal itself. The court upheld the decisions of the Commissioner (Appeals) and the Tribunal, stating that the Commissioner (Appeals) had no power to condone delays beyond the further period of 30 days from the expiry of the initial 60-day period. The writ petition was dismissed.

Summary

Issues Involved:
1. Classification of Pan Masala (Gutkha) for excise duty purposes.
2. Condonation of delay in filing an appeal u/s 35 of the Central Excise Act, 1944.
3. Applicability of Section 5 of the Limitation Act, 1963 to appeals under the Central Excise Act, 1944.

Summary:

1. Classification of Pan Masala (Gutkha):
The petitioner, engaged in the manufacture of Pan Masala (Gutkha), initially classified the product under sub-heading No. 2404.49 of the Central Excise Tariff Act, 1985, paying 16% basic excise duty and 24% special excise duty. Following a letter from the Central Excise Department, the petitioner reclassified the product under heading No. 24.04. A show cause notice was issued contending that for the period prior to 28-2-2001, the goods were classifiable under heading 2106.00, and duty was demanded accordingly. The Deputy Commissioner of Central Excise confirmed this demand in Order-in-Original No. 61/2002, dated 17-5-2002.

2. Condonation of Delay in Filing an Appeal:
The petitioner filed an appeal against the Order-in-Original on 28-7-2002, which was 94 days after the receipt of the order. Section 35(1) of the Central Excise Act, 1944, prescribes a 60-day period for filing an appeal, extendable by a further 30 days if sufficient cause is shown. The Commissioner (Appeals) rejected the appeal, stating that he had no power to condone a delay beyond 30 days.

3. Applicability of Section 5 of the Limitation Act, 1963:
The petitioner argued that the Commissioner (Appeals) had the power to condone delays beyond 30 days under Section 5 of the Limitation Act, 1963, read with Section 29(2). However, the court held that the Central Excise Act, 1944, being a special law, expressly excludes the applicability of Section 5 of the Limitation Act beyond the 30-day period specified in Section 35(1). The court referred to the case of M/s. Delta Impex v. Commissioner Customs, which held that taxing authorities are not "courts" and thus Section 5 of the Limitation Act does not apply.

The court also considered various Supreme Court decisions, including Lalji Haridas v. State of Maharashtra, Commissioner of Sales Tax v. Madan Lal Das and Sons, and Union of India v. Popular Construction Company, to conclude that the provisions of the Limitation Act are excluded by the specific provisions of the Central Excise Act.

Conclusion:
The court upheld the decisions of the Commissioner (Appeals) and the Tribunal, stating that the Commissioner (Appeals) had no power to condone delays beyond the further period of 30 days from the expiry of the initial 60-day period. The writ petition was dismissed.