9911796707
TMI Blog2008 (9) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 86(2) of the Rajasthan Sales Tax Act, 1994 ( the Act of 1994 ), filed by the Revenue on March 29, 2003 against the order dated August 1, 2002 as passed by the Rajasthan Tax Board, Ajmer in Appeal No. 1177/1999 is reported to be barred by limitation by two days; and the petitioner has moved an application under section 5 of the Limitation Act, 1963 ( the Limitation Act ) for condonation of delay that has been opposed on behalf of the nonpetitioner as being incompetent. Though, this court is satisfied that on merits this revision petition remains bereft of substance; and further, the fate of this revision petition remains sealed with the order impugned herein having already been found not calling for interference by this court while rejecting the cognate revision petition (S. B. Sales Taxes Revision Petition Nos. 584/2005) on February 2, 2006 and, admittedly, the order passed by this court on February 2, 2006 in rejecting the said revision petition has attained finality; but and however, for the learned counsel for the petitioner having pressed on the revision petition and submissions having been made on the question of applicability of section 5, Limitation Act for condonati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpex v. CC (ACU), New Delhi [2004] 173 ELT 449 (Del), Pranam Enterprises v. Commissioner of Sales Tax, New Delhi [2005] 139 STC 226 (Delhi); [2005] 192 ELT 138 (Del.), Jhabboo Lal Kesara Rolling Mills v. Union of India [1985] 19 ELT 367 (All), Commissioner of Sales Tax, Maharashtra v. N.H. Polymers [2008] 13 VST 73 (Bom) and Commissioner of Customs, Central Excise, Noida v. Punjab Fibres Ltd., Noida [2008] 3 SCC 73. Learned counsel submitted that the decisions aforesaid even when not in relation to the Rajasthan Sales Tax, the principles therein would apply for interpretation of section 86. According to learned counsel, for section 35G of the Central Excise Act being similar to the provisions of section 86(2) of the Rajasthan Act, the principles particularly in Salora International [2006] 206 ELT 61 (All), Gopal Sardar [2004] 4 SCC 252, and Fairgrowth [2004] 122 Comp Cas 683 (SC); [2004] 11 SCC 472 would apply and the learned counsel has referred to the decisions in Commissioner of Central Excise v. Jawahar Mills Ltd. [2002] 125 STC 264 (SC); [2001] 132 ELT 3 (SC), Devi Dass Gopal Krishan Pvt. Ltd. v. State of Punjab [1994] 95 STC 170 (SC); [1994] Supp 2 SCC 59 and M. Ravji v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale behind taking away such power when it relates to the jurisdiction of the High Court. Learned counsel submitted that the provisions of section 84 and section 85 providing for condonation of delay by the first appellate authority and by the Tax Board by necessary implication bring about applicability of section 5 of the Limitation Act with express provision for such powers to condone delay to an unlimited extent; and, according to the learned counsel, in view of inclusion of the provisions of the Limitation Act in such provisions in the Act of 1994, the omission to state such powers of condonation in section 86 cannot be taken to mean express exclusion of the Limitation Act for the purpose of section 86 but, other way round, such powers of condonation of delay are required to be read in section 86 by necessary implication. Learned counsel submitted that in view of the phraseology of section 29 of the Limitation Act, it is the scheme of special law or local law that would be determinative of the question as to whether Limitation Act does or does not apply. Learned counsel has referred to the Full Bench decision of the honourable Bombay High Court in the case of Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Any person aggrieved by any order referred to in clauses (a), (b) and (c) of sub-section (1), may file an appeal before the Tax Board within ninety days of the date on which the order sought to be appealed against is communicated to him in writing. (3) Notwithstanding anything contained in sub-section (2) the Commissioner or a Deputy Commissioner (Administration) authorised specially or generally by the Commissioner may, if aggrieved by any order referred to in clauses (a), (b) and (c) of sub-section (1), direct any officer or in-charge of a check-post to file an appeal before the Tax Board and such officer or in-charge shall file such appeal under his signatures within one-hundred-and-eighty days of the date on which the order sought to be appealed against is communicated in writing to the Commissioner or the Deputy Commissioner. (4) . . . (5) The respondent may, on receipt of notice that an appeal against an order referred to in sub-section (1) has been preferred by the appellant, notwithstanding that he may not have appealed against such order, within one-hundred-and-twenty days in the case of an officer of the Commercial Taxes Department and within sixty days in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant it is to notice section 29(2) of the Limitation Act, 1963 that reads as under: Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Thus, wherever any special or local law has prescribed for any suit, appeal or application a period of limitation different from that provided by the Schedule to the Limitation Act, by virtue of the first part of section 29(2), the provisions of section 3 of the Limitation Act become applicable with the fiction as if the period provided by the special or local law were the period provided by the Schedule to the Limitation Act. The implication of such provision is that, subject to the provisions contained in sections 4 to 24 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in Fairgrowth's case [2004] 122 Comp Cas 683; [2004] 11 SCC 472 and other related cases. Learned counsel for the non-petitioner has referred to number of decisions to support the contention that applicability of section 5 of the Limitation Act is excluded by necessary implication for the purpose of section 86 of the Act of 1994. However, from the decisions cited by learned counsel for the non-petitioner, it is difficult to discern the principle as if mere omission of stating applicability of the provisions of the Limitation Act by itself would be decisive of the matter and necessary implication has to be taken of their exclusion. It is ultimately the scheme of the particular provisions and nature of remedy that would be determinative if there is available any such implication or not. For the operation and purport of Chapter IX of the Act of 1994 being different on the material aspects and implication does not appear available against the applicability of section 5 of the Limitation Act, it does not appear necessary to elongate this discussion with reference to all the cited decisions; however, the decisions strongly relied upon by the learned counsel may be noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude their operation. In Parson Tool's [1975] 35 STC 413 the honourable Supreme Court had considered the provision as contained in section 10(3B) of the U.P. Sales Tax Act, 1948 whereby the revision as provided under sub-section (3) was to be made within one year from the date of service of the order complained of but the revising authority could have entertained an application on proof of sufficient cause within a further period of six months. The honourable court said: Thus the principle that emerges is that if the Legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only up to a specified time-limit and no further, then the Tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of section 14(2) of the Limitation Act. The decisions in Punjab Fibres [2008] 3 SCC 73 and Salora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that the provisions of section 5 of the Limitation Act are impliedly excluded. While looking at section 86 of the Act of 1994, it is apparent that exclusion of section 5 of the Limitation Act has not been stated in express terms. Thus, the only question is as to whether exclusion of section 5, Limitation Act has to be taken as having been provided by necessary implication? Once it comes to the question of necessary implication, either the language of the provision itself must suggest that the provision is so compulsive that the only intent of the Legislature available is of exclusion of the provisions of section 5 of the Limitation Act for the purpose of condonation of delay or such exclusion must be available to be gathered by the scheme of the Act. The submission on the expression shall as contained in section 86(2) of the Act of 1994 that it has made the period of 180 days for revision to the High Court at the instance of Commissioner to be an imperative period and not available for any alteration, in the opinion of this court, is not correct on the purport and import of the phraseology of the said provision. Section 86 of the Act of 1994 in its terms gives a ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; and for necessary implication, in the scheme of the Act and in the scheme of Chapter IX of the Act of 1994 dealing with appeals and revisions, this court is unable to find any indication available so as to exclude the applicability of section 5 of the Limitation Act for the purpose of section 86 of the Act. Indications, whatever, available from sections 84 and 85 are that the Legislature has provided for the powers with the first appellate authority and the Tax Board to condone delay without specifying any limit thereupon in terms of length or cause. In the overall scheme of the enactment, the interpretation as suggested by the learned counsel for the petitioner and the learned intervening counsel appear to be more plausible that in relation to the revision to the High Court, no such power of condonation of delay per section 5 of the Limitation Act was required to be spelt out, it being the obvious; and of course, if the legislative intent was to curtail such power, either express provision would have been there or other provisions would have indicated so. The other provisions only indicate that so far first and second appeals are concerned, the authorities have unlimited power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruled. The revision petition is barred by limitation by two days and in the overall circumstances of the case, it appears appropriate to condone the delay in filing the revision petition. Delay is, accordingly, condoned. The revision petition be registered to its regular number. Coming to the merits, as noticed at the outset, this revision petition is required to be dismissed. The non-petitioner-dealer has been engaged in room coolers business. In relation to assessment year 1994-1995 it was assessed while taking the tax payable at ten per cent on the room coolers by assessment order dated December 22, 1995; the matter was reopened and while placing room coolers in the category of electronic goods, the dealer was assessed with levy of 12 per cent tax. Similarly, the order was made in relation to assessment year 1995-1996 taking the tax payable on the room coolers at 12 per cent. The appeals taken by the dealer to the Deputy Commissioner (Appeals) were, however, allowed on March 24, 1999 and the learned appellate authority found with reference to the notifications dated March 4, 1992, March 7, 1994 and March 27, 1995 that earlier, in the notification dated March 4, 1992, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
