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TMI Blog2019 (11) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner. - W.P.No.28200 of 2019, W.M.P.Nos.27869 of 2019 - - - Dated:- 26-9-2019 - Mr. Justice S. Manikumar And Mr. Justice Subramonium Prasad For the Petitioner : Mr.R.Chandrasekaran For the 1st Respondent : Tribunal For the Respondents : Mrs.Aparna Nandakumar, CGSC ORDER (ORDER OF THE COURT WAS MADE BY S.MANIKUMAR, J) Instant Civil Miscellaneous Appeal is filed against the Final Order No.40671/2019, dated 24.04.2019, arising out of Service Tax Appeal No.42059 of 2018, passed by the Customs, Excise, Service Tax Appellate Tribunal, Chennai, first respondent and remit the matter back to the file of the 2nd respondent for passing appropriate orders in the appeal. 2. The petitioner is a partnership firm, which owns Kailash Theatre in the city of Salem. By an agreement, dated 20.12.2017, followed by a supplementary agreement, dated 01.06.2009, the petitioner-firm have let their theatre, on lease to one M/s.Adlabs (now known as M/s.Reliance Media Works Ltd.,), to conduct business, operate and manage the theatre. However, on inspection, the Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise of the same. For the above reasons, I do not find any reasons to interfere with the findings of the first appellate authority with regard to limitation. 3. Though several grounds have been filed, challenging the order of the CESTAT, Chennai, this Court is not inclined to interfere with the order of the Tribunal, on the ground that in a similar case in Falcon Types Ltd., v. Customs, Excise and Service Tax Appellate Tribunal reported in 2016 (5) MLJ 413, we have considered the power of the appellate authority to condone the delay beyond the extendable period and held as follows: 8. On the aspect, as to whether, the appellate authority is empowered to condone the delay of the extendable period, let us consider few decisions of the Hon'ble Apex Court, rendered under various enactments, wherein specific time limit has been provided, for filing an appeal. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India, cannot re-write the provisions of the Act. It is worthwhile to extract the reported judgments considered in Indian Coffee Worker's Co-op. Society Ltd.'s case (cited supra), which are reproduced hereunder: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days. It has to be noted that even though in the provisions of the Act (Section 58 of the Motor Vehicles Act of Uttar Pradesh), the 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient cause for not preferring the appeal within the prescribed period of 30 days subject to the payment of the admitted tax due. Under the amended provision, the delay can only be condoned up to a further period of 30 days. 14. In a recent Judgment, the Supreme Court of India, in Union of India v. Popular Construction Co., [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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner 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. (iii) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an 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 intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal was filed more than 140 days, counted from the date of Tribunal's order, in terms of the provisions to Section 125 of the Electricity Act, 2003, the Apex Court can extend the time to file an appeal to a maximum of 60 days only and the power under Section 5 r/w. Section 29(2) of the Limitation Act can be exercised for condonation of delay beyond the period of 120 days. Decision in Mukri Gopalan v. Cheppilat Puthuapurayil Aboobacker [(1995) 5 SCC 5] was pressed into service. Besides, a contention has also been made that, by virtue 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 plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al law. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of easement in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend. After considering several decisions, the Hon'ble Supreme Court, at Paragraphs 20, 25 to 27 and 32, held as follows: 20. Section 125 provides for an appeal to this Court against any order or decision of the Tribunal which can be 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 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and provisions contained in Sections 4 to 24 (inclusive) shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law. 32. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Tribunal, under Section 85(3) of the Finance Act, 1994, cannot be extended, and after referring to the decisions in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (SC)], JMJ Constructions v. Assistant Commissioner of Central Excise, Salem [(2012) 56 VST 256 (Mad.)], Earbis Engineering Co. Ltd. v. Deputy Commissioner of Sales Tax, Ballygunge Charge [(2012) 56 VST 258 (WBTT), Gopinath Sharma v. CESTAT, Chennai [2013 (32) STR 172 (Mad.)] and Gopinath Sharma v. CESTAT [2013 (32) STR J78 (SC)], a Hon'ble Division Bench of this Court dismissed the Civil Miscellaneous Appeal. Substantial question of law, as to whether, the Tribunal ought to have condoned the delay and entertained the appeal, has been held against the appellant therein. There is no reason, as to why, the reported judgment cannot be made applicable to the instant appeal. (vii) In Saradha Travels v. Commissioner of Service Tax reported in 2015 (3) STR 433 (Mad.), an appeal was filed with a delay of one year and six months. The Tribunal dismissed the appeal. Adverting to the substantial questions of law, raised by the appellant there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposite party and was prosecuting their case with due-diligence and in good faith, the principles of Section 14 of the Limitation Act, 1963, should be applied even by the quasi judicial bodies exercising powers under Section 128 of Custom Act, 1962, thereby failing to follow the ratio of the said judgment and finding fault with the Commissioner of Customs (Appeals) for not considering and disposing of the application for condonation of delay, dated 29.03.2007/03.04.2007 filed by the appellant? 10. In the foregoing paragraphs, we have already discussed about the inapplicability of the above reported judgment in M.P. Steel Corporation v. Commissioner of Central Excise reported in (2015) 7 SCC 58, to the facts on hand. As the appeal filed before the Commissioner of Customs (Appeals), has been rejected, as time barred and confirmed by the CESTAT, Chennai, we are of the considered view that there is no obligation on the authorities to advert to the merits of the case. 11. Observation of the Tribunal that the appellant cannot agitate the order, dated 20.02.2007, as it was not issued to the appellant, though contended by the learned counsel, as erroneous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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