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TMI Blog2017 (12) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... od, as provided for in the proviso to Section 38 of the then Tamilnadu General Sales Tax Act, 1959. Reference made to decision in the case of Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., [2009 (3) TMI 31 - SUPREME COURT], where the Hon'ble Apex Court considered a question, as to whether, High Court has power to condone the delay, in presentation of a reference application, under unamended Section 35H(1) of the Central Excise Act, 1944, beyond the prescribed period, by applying Section 5 of the Limitation Act, 1963 and it was held that time limit prescribed u/s 35H(1) is absolute and unextendable u/s 5 Limitation Act. Since court has to respect the legislative intent, limitation cannot be extended u/s 5 of Limitation Act Delay cannot be condoned - appeal dismissed. - T.C.SR. No. 80388 of 2007, M. P. No. 1 of 2012 - - - Dated:- 6-12-2017 - S. Manikumar And R. Pongiappan, JJ. For the Petitioner : Mr. K. Venkatesan For the Respondent : Mr. T. Pramodkumar Chopda ORDER ( Order of the Court was made by S. Manikumar, J ) Reasons assigned for condoning the delay of 1541 days in representation is that the returned papers were mixed up. Afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 3. Subsequently, after considering the Hon'ble Division Bench judgment of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, reported in (1990) 1 LLN 457 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiderations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. It is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent? 5. Following the guiding principles of Law, in the matter of condonation of delay, we find absolutely no sufficient cause, to condone the delay. That apart, it is also informed that the appeal has been filed beyond the statutory period, as provided for in the proviso to Section 38 of the then Tamilnadu General Sales Tax Act, 1959. Reference can be made to the following decisions. (i) In Indian Coffee Worker's Co-op. Society Ltd., v. Commissioner of Commercial Taxes reported in 2002 (I) CTC 406, the question considered by a Hon'ble Division Bench of this Court was, as to whether, the High Court, while exercising Article 226 of the Constitution of India, can direct the appellate authority to consider the appeal, on merits, when such appeal was filed, after the expiry of 30 days, from the last date, on which, appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P., [AIR 1976 SC 2161], the Supreme Court was considering Section 58 of the Motor Vehicles Act. The Supreme Court has ruled as under:- Section 58 of the said Act provided that a permit may be renewed on an application made for such purposes, provided that the application for renewal of a permit shall be made (a) in the case of stage carriage permit or public carrier's permit, not less than 120 days before the date of expiry; and (b) in any other case not less than 60 days before the date of its expiry. Sub-section (3) of that Section further provided that: Notwithstanding anything contained in the first proviso to subsection(2), the Regional Transport Authority may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than 15 days after the said last date and is accompanied by the prescribed fee. Thus, sub-section(3) vested in the Regional Transport Authority a power to entertain an application for renewal of a permit even if it is beyond time, but in that case the time should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e wordings condonable only if it is of not more than 15 days are not there, the Supreme Court so held on the basis of the wordings employed in the provisions of the Act, which read thus:- may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than 15 days after the said last date. 12. The next decision is the one reported in K.Ganesh v. State of Tamil Nadu [ 1988 STC (VOL.68) 84]. That was a case where a petition was filed to condone the delay of 211 days in filing the Tax Case Revisions against the order of the Sales Tax Appellate Tribunal, Coimbatore. The Revisions were filed under Section 38 of the Tamil Nadu General Sales Tax Act. According to Sub-section-1 of Section-38, a petition can be preferred to the High Court within 90 days from the date of which copy of the order is served. By virtue of the 8th Amendment Act 1986 which came into effect on 15/12/1986, the High Court may within a further period of forty-five days, admit a petition preferred after the expiration of the said period of ninety days, if it is satisfied that the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , [2001 (4) CTC 213], considered Section 34 of Arbitration and Conciliation Act, 1996 and ruled that when the statue positively prescribes 90 days as time limit for the purpose of filing an application under Arbitration Act, that provision is to condone the delay for a further period of 30 days only and Section 5 of the Limitation Act does not apply in view of express exclusion and scheme of the Act and delay beyond a period of 30 days after expiry of the original period of limitation cannot be condoned. It will be useful to quote in verbatim, the exact wordings employed by the Supreme Court, which reads thus:- As far the language of Section 34 of 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to subsection(3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase `but not thereafter' wholly otiose. No principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. (ii) In Commissioner of Customs Central Excise v. Hongo India (P) Ltd., reported in 2009 (236) ELT 417 (SC), the Hon'ble Apex Court considered a question, as to whether, High Court has power to condone the delay, in presentation of a reference application, under unamended Section 35H(1) of the Central Excise Act, 1944, beyond the prescribed period, by applying Section 5 of the Limitation Act, 1963. After considering the decisions in Singh Enterprises v. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC), at Paragraphs 18 to 20, the Hon'ble Apex Court held as follows: 18) In the earlier part of our order, we have adverted to Chapter VIA of the Act which provides appeals and revisions to various authorities. Though the Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to Appellate Tribunal. Also an additional period of 90 days in the case of revision by Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal and revision. 20) Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court. It was contended before us that the words expressly excluded would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Section 4 to 24 of the Limitation Act by an express reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tue of the impugned order therein, huge liability has been fastened against the appellant and if the appeal is not entertained, it will suffer irreparable injury. Learned counsel appearing for the 3rd respondent therein, has submitted that in view of the plain language of the proviso to Section 125 of the Electricity Act, the Hon'ble Supreme Court has no power to extend the period for filing an appeal beyond 120 days and if the provisions of the Limitation Act is invoked, it would negative the legislative intent, which has prescribed a special limitation, for filing an appeal against any decision or order of the Tribunal. Reliance has also been placed on the decision of the Hon'ble Apex Court in Popular Construction Company's case (cited supra), Singh Enterprises's case (cited supra) and Hongo India Private Ltd.,'s case (cited supra). Section 125 of the Electricity Act, 2003, reads as follows: 125. Appeal to Supreme Court:- Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed within 60 days from the date of communication of the decision or order of the Tribunal. The limitation placed on the jurisdiction of this Court is that the appeal can be entertained only on one or more of the grounds specified in Section 100 of the Code of Civil Procedure. Proviso to Section 125 empowers this Court to entertain the appeal within a further period not exceeding 60 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. In other words, an appeal under Section 125 can be filed within a maximum period of 120 days if this Court is satisfied that there was sufficient cause for not filing the same within 60 days from the date of communication of the decision or order appealed against. 25. Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory. 9. In Chhattisgarh State Electricity Board's case (cited supra), the Hon'ble Apex Court held that Section 5 of the Limitation Act cannot be invoked by the Court to allow an appeal to be filed, under Section 125 of the Electricity Act, 1963, after more than 120 days. 10. In Gopinath v. CESTAT, Chennai reported in 2013 (32) STR 172 (Mad.), after considering the decision in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (SC)], this Court, at Paragraphs 16 and 17, held as follows: 16. In the order passed in Order in Original No.96 of 2009 dated 16.12.2009, appeal was filed before the Commissioner of Central Excise (Appeals) on 26.12.2011, acknowledged on 29.12.2011 beyond the period of three months plus discretionary period of three months. Tribunal rightly referred to the decision in 2008 (221) E.L.T. 163 (S.C) [Singh Enterprises v. Commissioner of Central Excise, Jamshedpur] holding that a statutor ..... 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