9911796707
TMI Blog1988 (7) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... n the C.O.D. application, the applicants have stated that the Tribunal s order was received by them on 3-12-1987 and they should have filed the reference application under Section 35G(1) within 60 days of the date on which the Tribunal s order was served on them. It is also stated that as the Company was continuously facing various types of problems, such as raw material, electric current, disposal of finished goods, as well as financial problem, they labour, forgot to make reference application within the time limit. They have prayed that the delay in filing the reference application may be condoned. 2A. We have heard Shri A.K. Jain, learned Advocate for the applicants and Shri L.C. Chakraborty, learned J.D.R. for the respondent. Shri Jain has stated that following the ratio of Supreme Court judgment vide paragraphs F to H at page 264 of the judgment reported in 1976 S.C.R. Volume II, Page 260 (Mangu Ram v. Municipal Corporation of Delhi) the delay in filing the reference application may be condoned. He has also stated that reference application is sustainable as no rate of duty or valuation of the goods was involved. 3. Shri Chakraborty has argued that reference application i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. As a reference to High Court under Section 35G(1) of the Act is not permissible in this case, the application for condonation of delay in filing the reference application is irrelevant and has no significance. However, from the point of academic discussion we observe that the Tribunal s order dated 21-10-1987 was received by the applicants on 3-12-1987. The time-limit prescribed under Section 35G (1) is 60 days from the date of service of the order under Section 35C. The statutory time-limit expired on 2-2-1988. Under proviso to Section 35G(1) the Tribunal is competent to condone delay not exceeding 30 days where the reference application is maintainable under law. In this case, apart from the fact that reference application does not lie under Section 35G(1), the delay in filing the application was more than 30 days over the stipulated period of 60 days prescribed under Section 35G(1). The learned Advocate for the applicants has relied on the Supreme Court decision reported in 1976 S.C.R. Volume-II Page 260 in the case of Mangu Ram V. Municipal Corporation of Delhi in support of his contention that Tribunal is competent to condone delay in filing reference application in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice of an order under Sec. 35C (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days. (2)* * * * * * (3)* * * * * * (4)* * * * * *. 10. Section 29 of the Limitation Act, 1963 reads as follows :- 29. SAVINGS. - (1) nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872. (2) Where any special or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de, it is also necessary to find out whether Sub-Section (2) of Section 29 is otherwise inherently applicable to a special or local law. If it is inherently not applicable, then, merely by virtue of the fact that a special law or local law does not exclude application of Sections 4 to 24 (inclusive) of Limitation Act, 1963 it cannot be applied. From these observations it is clear that where a special or local law itself prescribes a period of limitation for filing an appeal or application and also provides for a limited application and exercise of powers analogous to Section 5 of the Limitation Act in that the authority under the Act may entertain an application or appeal within a further specified period on proof of sufficient cause Section 5 of the Limitation Act would not apply. 13. Recently the Hon ble Supreme Court in the case of Commissioner of Sales Tax U.P. Lucknow v. Parson Tools Plants, Kanpur, AIR 1975 SC 1039 while considering the applicability of Sections 5 and 14(2) of the Limitation Act to the Revision application filed under Rule 68(6) of the U.P. Sales Tax Rules held that the appellate Authority and the Judge (Revisions) under the U.P. Sales Tax Act are not Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State. Section 10 is therefore designed to ensure speedy and final determination of fiscal matters within a reasonably certain time-schedule. 10. It cannot be said that by excluding the unrestricted application of the principles of Sections 5 and 14 of the Limitation Act, the Legislature has made the provisions of Section 10, unduly oppressive. In most cases, the discretion to extend limitation, on sufficient cause being shown for a further period of six months only given by sub-section (3-B) would be enough to afford relief. Cases are no doubt conceivable where an aggrieved party despite sufficient cause, is unable to make an application for revision within this maximum period of 18 months. Such harsh cases would be rare. Even in such exceptional cases of extreme hardship, the Revising Authority may, on its own motion, entertain revision and grant relief. 11. Be that as it may, from the scheme and language of S. 10, the intention of the Legislature to exclude the unrestricted application of the principles of Sections 5 and 10 of the Limitation Act is manifestly clear. These provisions of the Limitation Act which the legislature did not, after due application of mind, inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
