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TMI Blog2010 (10) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. These appeals arise from the orders passed by the Commissioner (Appeals), Mangalore dismissing the appeals filed by the appellant against the order passed by the Adjudicating Authority solely on the ground that the appeals were filed beyond the period of 6 months from the date of receipt of the order passed by the Adjudicating Authority. 4. The facts, which are not in dispute, are that one Shri Murgesh S. Yelamoli was the Managing Partner of the Appellants' firm. In the appeal No. ST/642/10, the order passed by the Adjudicating Authority was dated 27-2-2009 and it was received by the Managing Partner of the appellants on 16-3-2009. In the appeal No. ST/640/10, the Adjudicating Authority's order dated 29-12-2008 was rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember, 2007 and confirmed demand of Rs. 2,03,854. 7. Referring to section 16 of the Limitation Act, 1963, the ld. Advocate for the appellants submitted that though the Commissioner (Appeals) cannot entertain an appeal filed after 6 months from the date of receipt of the copy of the order of the Adjudicating Authority, the period of 6 months is to be counted from the date of receipt of the copy of the order by the successor of a person who had received such copy during his life time without imperting any knowledge in relation to such receipt of copy of the order to the successor. He further submitted that the expression 'accrual of the right to sue' as found in section 16 of the Limitation Act has to be understood with reference to the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 15-1-2009, 7-2-2009 and 16-3-2009 whereas the appeals were filed on 5-10-2009 and therefore the same were filed beyond 6 months from the date of receipt of the copies of the orders. In those circumstances, the Commissioner (Appeals) lacked jurisdiction to entertain the appeals and therefore, no fault can be found with the impugned orders dismissing the appeals. She further submitted that in view of the law laid down by the Apex Court in Hongo India (P.) Ltd. case (supra) the Tribunal cannot entertain the appeals filed against the said orders. 9. The provision of law relevant for the decision is section 85(3) of the Finance Act, 1994. It provides that an appeal shall be presented within 3 months from the date of the receipt of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication accrues only on the death of a person, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting such suit or making such application. Sub-section (2) of section 16 provides that where a person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues, or where a right to institute a suit or make an application against any person accrues on the death of such person, the period of limitation shall be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute such suit or make such application. Sub-section (3) provides that not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act should be read in favour of such appellate authority was rejected by the Bombay High Court. 13. Be that as it may, even otherwise considering the facts of the case in hand, section 16 would be of no help to the applicant. Section 16 relates to the cases where right to sue accrues after the death of the party. Considering the facts of the case in hand, the copies of the orders were received by the Managing Partner much prior to his death. The Managing Partner expired on 23-6-2009. The copies of the orders were received on 15-1-2009, 7-2-2009 and 16-3-2009. Obviously, the period to file the appeal commenced with the accrual of the right to file the appeal in favour of the appellants on the day when the copies were received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under section 35H(1) to make a reference to High Court is absolute and unextendable by court under section 5 of the Limitation Act. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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