2008 (12) TMI 214 - HC - Central Excise

Whether this Court is empowered to condone the delay in filing the Appeals under Section 35G of the Central Excise Act, 1944 which are filed beyond the prescribed period of 180 days? Held that - As in the light of Section 29(2) of Limitation Act, 1963, in any Appeal filed under Section 130 of the Customs Act, 1962, this Court is empowered under Section 5 of the Limitation Act, 1963 to condone the delay, thus hold that Section 5 of Limitation Act will be applicable to Appeals filed under Section 35G of the Central Excise Act, 1944. Hence the above Appeals stand restored to file. The Notices of Motion for condonation of delay be placed before appropriate Division 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. Conflicting Decisions:
The judgment addresses conflicting decisions by two Division Benches on the High Court's power to condone delays in appeals under Section 35G of the Central Excise Act, 1944. One Division Bench in the Sujog Fine Chemicals case held that the High Court is empowered to condone the delay under Section 5 of the Limitation Act, 1963, while another Division Bench in the Shruti Colorants Limited case held the opposite.

2. Identical Wordings in Statutes:
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 limitation period of 180 days are identical.

3. Section 29(2) of the Limitation Act, 1963:
Section 29(2) of the Limitation Act, 1963, was analyzed, which stipulates that the provisions of Sections 4 to 24 of the Limitation Act apply to any special or local law unless expressly excluded. The Supreme Court's interpretation in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker and State of West Bengal v. Kartick Chandra Das was cited to support this view.

4. Analysis of Supreme Court Judgments:
The judgment scrutinized the Supreme Court's decisions in Commissioner of Customs v. Punjab Fibres Limited and Nasiruddin v. Sita Ram Agarwal, which were relied upon in the Shruti Colorants Limited case. It was noted that these cases did not address the real scope of Section 29(2) of the Limitation Act, 1963.

5. Full Bench Judgment in Velingkar Brothers:
The Full Bench judgment in Commissioner of Income Tax v. Velingkar Brothers was considered, which held that the High Court has the power to condone delays under Section 5 of the Limitation Act for appeals under the Income-tax Act, 1961. The judgment emphasized that the exclusion of Sections 4 to 24 of the Limitation Act cannot be lightly inferred.

6. Applicability of Section 5 of the Limitation Act:
The court concluded that Section 5 of the Limitation Act applies to appeals under Section 35G of the Central Excise Act, 1944, as there is no express exclusion of this provision. The conditions for the applicability of Sections 4 to 24 of the Limitation Act, as laid down in Mukri Gopalan's case, were satisfied.

Conclusion:
The court agreed with the view expressed in the Sujog Fine Chemicals case and held that Section 5 of the Limitation Act is applicable to appeals filed under Section 35G of the Central Excise Act, 1944. Consequently, the appeals were restored to file, and the Notices of Motion for condonation of delay were to be considered by the appropriate Division in accordance with the law.

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