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TMI Blog2014 (11) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal - Decided against Revenue. - C.E.A. No. 48 of 2008 - - - Dated:- 8-10-2014 - L. Narasimha Reddy And Challa Kodanda Ram,JJ. For the Appellant : Sri P. S. P. Suresh Kumar For the Respondent : Sri R. Radha Krishna Reddy JUDGMENT (Per LNR,J) This appeal is preferred by the State under Section 35-G of the Central Excise Act, 1944 (for short the Act) feeling aggrieved by the order, dated 01.08.2007 passed by the Customs, Excise Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (for short the Tribunal) in Appeal No.E/224/07. It raises certain questions of general importance. The facts, that gave raise to the filing of this appeal, are as follows: The respondent is a manufacturer of goods, which are subjected to payment of excise duty and cess. In relation to its obligation to pay the cess on the manufactured goods, the original authority passed an order, dated 23.03.2006 raising a demand for ₹ 19,96,410/- and interest under Section 11AB of the Act. A copy of the order was furnished to the respondent on 09.05.2006. Aggrieved by that, the respondent filed an appeal before the Tribunal. The Tribunal rejected (obviously returned) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the appeal was presented within the stipulated time before the Tribunal and since it was found to be not the proper Forum, the appeal was presented shortly thereafter before the Commissioner. According to the learned counsel, if the time, during which the remedy was pursued before the Tribunal is excluded, the appeal stood presented within the limitation before the Commissioner. Relying upon the judgments of the Honble Supreme Court in Union of India vs. Popular Construction Co. (2001) 8 Supreme Court Cases 470 and Vidyacharan Shukla vs. Khubchand Baghel AIR 1964 (SC) 1099, learned counsel submits that the view taken by the Tribunal is correct. The dates that are relevant for the purpose of this case have already been mentioned in the preceding paragraphs. The respondent suffered an order in the hands of the original authority on 23.03.2006 and soon after he was furnished a copy thereof, he presented the appeal before the Tribunal, under the impression that it is the proper Forum. It was only on 28.09.2006, that the Tribunal informed the respondent that it has to avail the remedy before the Commissioner (Appeals). Accordingly the appeal was presented on 09.10.2006. The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Commissioner, the original period of limitation is stipulated as 60 days and the Commissioner is conferred with the power to condone delay, to the extent of 30 days. As regards the appeals to the Tribunal, the original period of limitation is 90 days under Section 35B(3) of the Act and the proviso thereto confers power on the Tribunal to condone the delay without any restriction whatever. So far as the appeals to the High Court are concerned, Section 35G of the Act stipulates 180 days as limitation and does not provide for condonation of any delay, whatever. It is in this background, that the judgments rendered by the Honble Supreme Court need to be understood. In Hongo India Private Limted s case (2 supra), the question was as to whether the High Court has the power to condone the delay at all in the appeals preferred under Section 35G of the Act. Their Lordships took the view that Section 5 of the Limitation Act stands excluded in relation to the proceedings under the Act. The relevant paragraphs of the judgment read: 32.As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the provisions of Sections 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. 36.The scheme of the Central Excise Act, 1944 supports 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 well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. Almost on the same lines is the judgment of the Supreme Court in Singh Enterprises s case (1 supra). In Amchong Tea Estates case (3 supra), their Lordships have just followed the judgment in Hongo India Private Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 99. Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. The contention is that sub-section (3) of Section 116-A of the Act not only provides a period of limitation for such an appeal, but also the circumstances under which the delay can be excused, indicating thereby that the general provisions of the Limitation Act are excluded. There are two answers to this argument. Firstly, Section 29(2)(a) of the Limitation Act speaks of express exclusion but there is no express exclusion in sub- section (3) of Section 116-A of the Act; secondly, the proviso from which an implied exclusion is sought to be drawn does not lead to any such necessary implication. An important distinction needs to be kept in mind in the context of the limitation. The Limitation Act as well as the special enactments stipulate the period not only for the original proceedings, but also for appeals and applications. If the limitation is for presentation of original proceedings, the question of condonation of any delay even for the best of the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n claimed as a matter of right in respect of an O.P. filed under Section 34 of the Arbitration and Conciliation Act. The reason is that it partakes the character of an original suit. Secondly, the inclusion of the words but not thereafter kept the matter beyond any pale of doubt that, whatever be the reason, the application cannot be entertained beyond the period of 90+30 days. The importance, which their Lordships added to that expression, is evident from the following discussion: Had the proviso to Section 34 merely provided for a period within which the court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because mere provision of a period of limitation in however peremptory or imperative language is not sufficient to displace the applicability of Section 5. There is no indication in the precedents relied upon by the learned counsel for the appellant that the ratio mentioned above is watered down in any manner. The scope of applicability of Section 14 of the Limitation Act to the proceedings under the Act was never in doubt. The record of this case clearly discloses that if the period during which the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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