2004 (9) TMI 132 - HC - Central Excise

Applicability of Section 5 of the Limitation Act, 1963 to appeals under Section 35 of the Central Excise Act - Whether the Commissioner of Central Excise (Appeals) functions as a court for the purposes of the Limitation Act, 1963 - HELD THAT - The forum that functions as a court or has trappings of the court would be a court for the purposes of applicability of the Limitation Act, 1963. The jurisdiction to entertain proceedings, appeals or revisions under the special laws is sometimes given to the ordinary courts, and sometimes given to separate tribunals constituted under the special law. Such tribunals constituted under the special law which function as courts or having trappings of courts may be treated as courts for the purposes of the Limitation Act, 1963 but not all bodies or authorities hearing appeals or revisions under special law, having no trappings of the court or which do not function as a court. The Commissioner of Central Excise (Appeals) empowered to hear appeals u/s 35 of Central Excise Act, in our considered view, cannot be treated to be forum functioning as a court nor the said authority can be said to have trappings of the court. The Commissioner of Excise (Appeals), though, is a appellate authority u/s 35 but his decisions do not satisfy the essential tests of judicial pronouncement. He cannot be said to possess the attributes of a court. In the entire Central Excise Act, there is no provision which even makes the Commissioner of Central Excise (Appeals) a court for limited or specific purpose. The appellate authority u/s 35 of the Central Excise Act is only executive authority; true it is while hearing the appeals contemplated u/s 35, the Commissioner of Central Excise (Appeals), acts quasi judicially. But that would not make Commissioner, Central Excise a court or an authority functioning as a court or having the trappings of a court. We, therefore, hold that Section 29(2) of the Limitation Act, 1963 is not attracted to the appeals preferred u/s 35 of the Central Excise Act and consequently Section 5 of the Limitation Act is not applicable to such appeals. Even otherwise, as per Section 35, the appellate authority could extend the period of limitation upto 30 days of the expiry of statutory period of 60 days. There being any express provision in Section 35 of Central Excise Act putting a ceiling on the powers of appellate authority even on the proof of sufficient cause, the general provision of Section 5 of Limitation Act shall be deemed to be excluded. The language of Section 35 of Central Excise Act does not permit invocation of Section 5 of Limitation Act, either, in terms or in principle. Thus, in view of the admitted position that the appeal was preferred by the present petitioner u/s 35 beyond 30 days of the expiry of statutory period of 60 days, the Commissioner of Central Excise (Appeals) cannot be said to have committed any error in not entertaining the appeals as barred by limitation prescribed u/s 35 of the Central Excise Act. Writ petition is, accordingly, dismissed.

Summary

Issues Involved:
1. Applicability of Section 5 of the Limitation Act, 1963 to appeals under Section 35 of the Central Excise Act.
2. Whether the Commissioner of Central Excise (Appeals) functions as a court for the purposes of the Limitation Act, 1963.

Summary:

Issue 1: Applicability of Section 5 of the Limitation Act, 1963 to appeals under Section 35 of the Central Excise Act

By the order in original dated 31st October 2003, the Deputy Commissioner of Central Excise rejected the petitioner's rebate claims. The petitioner received the order on 20th December 2003 and filed an appeal before the Commissioner of Central Excise (Appeals) on 28th April 2003. The Commissioner of Central Excise (Appeals) dismissed the appeal as being barred by the limitation prescribed u/s 35 of the Central Excise Act. The petitioner challenged this order, arguing that Section 5 of the Limitation Act, 1963 should apply, allowing for an extension beyond the 30-day period after the initial 60 days prescribed u/s 35 of the Central Excise Act.

The petitioner relied on Supreme Court judgments in Mangu Ram v. Municipal Corporation of Delhi, Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, and P. Sarathy v. State Bank of India, which supported the applicability of Section 5 of the Limitation Act to special laws unless expressly excluded. Conversely, the revenue argued, citing Supreme Court judgments in Sakuru v. Tanaji, Prakash S. Jain v. Marie Fernandes, and Union of India v. Popular Construction Co., that the Commissioner of Central Excise (Appeals) could not condone delays beyond the period prescribed u/s 35 of the Central Excise Act and that the Limitation Act provisions did not apply.

The court reflected on these submissions and held that Section 29(2) of the Limitation Act, 1963 does not apply to appeals under Section 35 of the Central Excise Act. Therefore, Section 5 of the Limitation Act is not applicable to such appeals. The court clarified that the language of Section 35 of the Central Excise Act does not permit the invocation of Section 5 of the Limitation Act, either in terms or in principle.

Issue 2: Whether the Commissioner of Central Excise (Appeals) functions as a court for the purposes of the Limitation Act, 1963

The court examined whether the Commissioner of Central Excise (Appeals) could be considered a court for the purposes of the Limitation Act, 1963. It concluded that the Commissioner of Central Excise (Appeals) does not function as a court nor possesses the attributes of a court. The appellate authority under Section 35 of the Central Excise Act is an executive authority, acting quasi-judicially, but this does not make it a court or an authority with the trappings of a court.

In light of the admitted position that the appeal was filed beyond the permissible extension period, the court found no error in the Commissioner of Central Excise (Appeals) dismissing the appeal as time-barred under Section 35 of the Central Excise Act.

Conclusion:

The writ petition was dismissed, affirming that Section 5 of the Limitation Act, 1963 does not apply to appeals under Section 35 of the Central Excise Act, and the Commissioner of Central Excise (Appeals) is not a court for the purposes of the Limitation Act, 1963.