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TMI Blog2014 (11) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... n-G of Central Excise Act, 1944 is barred by 5 years and 113 days. 3. The appellant is challenging the orders dated 28/09/2006 and 29/06/2007. 4. Section 35-G(2) (A) of Central Excise Act, 1944 reads as under:- (2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. 5. Learned Senior Counsel for the appellant has submitted that financial status of the company was not good and appellant No.1 - Company was running under heavy losses and matter was sub-judice before the B.I.F.R., wherein the Company was declared as a Sick Industrial Unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R vide order dated 04.03.2011 remanded the case to BIFR. A copy of the order dated 04.03.2011 is enclosed herewith. Thereafter, BIFR vide order dated 14.01.2013 directed the appellant to submit MDRS to MPFC. A copy of the order dated 14.01.2013 is enclosed herewith. 3. That upon the sincere efforts of the Management, the Company is again trying to re-start the production. As the Company's Unit is located in a backward area, its restart would give bread and butter to the Labourers so also employment to the youths, Now, by the efforts of the government, there as been uninterruptedly and continuous power supply also. 4. That the appellant submits that this Hon'ble Court, inste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, learned counsel for the respondents submits that provisions of Section 5 of the Indian Limitation Act, 1963 will not be applicable. He submitted that as per amended provision of Section 35-G(2) (A) of Central Excise Act, 1944, the period as specified under the aforesaid provision can only be condoned. 8. In the present case, delay is more than 5 years and 113 days and in view of the law laid down by the Apex Court in para 32 of the case of Commissioner of Central Excise vs. Hongo India Private Limited & Another, reported in (2009) 5 SCC 791 the delay beyond the period of 180 days cannot be condoned. Para 32 and 33 of the case of Commissioner of Central Excise (supra) are relevant which reads as under:- 32. As pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a special Act. Applicability of the Limitation Act is to be judged from the terms of the special law. 10. The Apex Court in the case of Commissioner of Central Excise (supra) has held that High Court has no power to condone the delay in filing a "reference application" filed by the Commissioner under un-amended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation. 11. On due consideration of the aforesaid and in view of the law laid down Commissioner of Central Excise (supra) the provision of Indian limitation Act, 1963 will not be applicable and as per Section 35G(2) (a) of Central Excise Act, 1944 the appeal was filed after the period p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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