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TMI Blog2008 (8) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant in all the present Appeals have taken out Notices of Motion for condonation of delay varying from 3 days to 79 days in filing the present Appeals. Thus, it is not necessary for us to deal in greater detail with the facts of each case and for the purposes of brevity, we would be referring to the facts of Central Excise Appeal (Lodging) No. 114 of 2008 to answer the question of law in the present Appeals. 2. M/s. Shruti Colorants Limited, the assessee, are carrying on the business of manufacture of Dye Intermediate falling under CSH 3204.19 of the First Schedule to the Central Excise Tariff Act, 1985. The assessee was availing the facility of Cenvat Credit on inputs and capital goods used in or in relation to manufacture of their final products under Rule 57A of the erstwhile Rules of 1944. They were also undertaking job work of M/s. Shreyas Intermediates Limited and getting the raw material under Rule 57F(4) Challans for conversion and on processing, sending it back to the principal i.e. the said concern M/s Shreyas Intermediates Ltd. on the same challans only. During the year 2001-2002, assessee had also undertaken the job work by using their own inputs like TCB and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AC of the Central Excise Act, 1944 arises for consideration in the present Appeal. 4. As already noticed, the present Appeal was filed on 29 th April 2008 and the Appellant took out Notice of Motion No. 2028 of 2008 praying for condonation of 72 days of delay in filing the present Appeal. In fact, there was not much opposition to this application and no reply has been filed. The principal question that arises for consideration in the present Appeal and of which the Court is expected to take suo motu note is whether, under the provisions of the Act, the High Court while entertaining an appeal under Section 35G of the Act at all has the power to condone the delay. As this matter goes to the very root of jurisdiction of the Court, the sufficiency or otherwise of the delay in filing of the Appeal loses much of its significance. Admittedly, the order of the Tribunal dated 30 th July 2007 is stated to have been received by the Department on 21 st August 2007 and despite the fact that the draft Appeal was received on 29 th March 2008, still the Appeal was filed on 29 th April 2008. Thus, the delay is hardly appropriately explained. As already noticed, the Court is primarily conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate who is a Senior Tax Practitioner. The Court while adjourning the matter for directions, passed the following interim order:- ".... In the meanwhile, there will be an ad interim order restraining respondents Nos.1 to 3 from constituting the National Tax Tribunal and transferring the matters pending in this court to the said Tribunal." 7. It is obvious that as a result of the above interim order, no Notification has been issued by the Central Government constituting the National Tax Tribunal or the Notification contemplated under Section 23 (1) of the 2005 Act. It is in this background that the provisions of Section 35G of the Act are still operative and Appeals to this Court are being filed under those provisions. Therefore, we must refer to the provisions of Section 35G for proper appreciation of legal principles. Section 35G of the Central Excise Act reads as under :- "SECTION 35G. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1 st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." 8. It is the contention raised on behalf of the Commissioners of Central Excise that the provisions of Section 5 of the Limitation Act would be applicable to an Appeal filed under Section 35G of the Act. As such, the Court will have the power to condone the delay and to entertain the Appeal on merits. It is also argued and with some vehemence that the word "shall" appearing in Section 35G of the Act will be construed as "may". Applying the principle of regular construction, the applicability of general principles enunciated for condonation of delay would squarely apply to these cases. Thus narrower construction of these provisions is not called for in the facts and circumstances of the case. 9. The Appeal filed by the Appellant would be controlled by the provisions of the Code of Civil Procedure in terms of Section 35G(9) of the Act which also would attract the applicability of the provisions of the Limitation Act as is applicable to an ordinary appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving Mills Co. Ltd. v. Collector Central Excise, AIR 1998 (99) E.L.T. 8 = AIR 1998 SC 1270). Thus special provisions curtailing the normal period of limitation for settlement for prosecution have also been strictly construed and benefits of reduced period of limitation, condonation or excuse may not be applicable to such situations. The law of limitation is founded on public policy. Its aim being to secure the quiet of the community and to prevent oppression. The law framers fixed the time for determination of the controversies at different levels and they should be raised and controverted limited to a fixed period of time. It is not expected that they should be immortal. Rule of limitation is intended to serve ends of justice by preventing continued litigation and requiring the aggrieved to act with expeditiousness and in any case within the prescribed period of limitation and to ensure that a succeeded party can enjoy fruits of the result of their litigation. In that sense, the object of rule of limitation is preventive and curative. It imposes a statutory bar after a certain period and giving a quietus to the suits to enforce an existing right. The law of limitation is thus fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for filing suits or legal proceedings. This indicates applicability of rule of strict construction to the law of limitation. 14. Furthermore, in the case of Ramlal and others v. Rewa Coalfields Ltd., AIR 1962 SC 361, was accepted as a principle of law that upon expiration of period of limitation prescribed under a statute, a right in favour of the beneficiary or decree holder to treat the decree or order binding between the parties accrues and this is a legal right which accrues and should not be light heartedly disturbed. 15. Reiterating the above principles with approval, the Supreme Court in the case of Antonysami v. Arulanandam Pillai (D) by L.Rs. And another, AIR 2001 SC 2967, held as under:- "16. The fixation of periods of limitation are bound to be to some extent arbitrary and may at times result in hardship. But in construing such provisions equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. (See AIR 1932 PC 165). The decree was enforceable immediately after the date specified in the decree i.e. 23.9,1966 for the decree-holder to deposit the consideration money. ...." 16. Even in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ystem of administration of justice permits or grants delay as a matter of right. On the contrary, Maxim Lex reprobate moram is the precept to governance of law. The provisions under the general or a special statute which provides for act and occasions to betaken with a specified period are based upon the maxim Omnes actiones in mundo infra cetra tempora habent limititationem. As already noticed, the limitation, particularly in special statute is subjected to reasonable or strict construction as may be bar of limitation causes hardship as delays in law are odious. The period of limitation once starts from terminus a qua, it does not stop, may be the party in default, is entitled to exclusion or condonation if specifically so contemplated under the provisions of the relevant law. It is expected of every litigant to be vigilant and mindful of his right as time runs against the indolent and who are not mindful of their rights. Another point of view which supports strict interpretation is of law of limitation is that the remedy and relief both could be declined on the ground of laches, that is, where a party could invoke the remedy but there is unreasonable delay in pursuing the right o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder this section". Thus, the applicability of the provisions of Civil Procedure Code is restricted and, thus, procedural provisions are made applicable to the Act but only and subject to the condition that provisions of the Act shall override and have preferential application. In section 35G, thus, there is no power given to the High Court to entertain an appeal filed after the expiry of 180 days from the date of receipt of the copy of the order passed by the Appellate Tribunal. The expression 'shall' in these circumstances, cannot be construed or read as 'may'. The Legislature in the same section i.e. section 35G(2), has used two different expressions 'may' and 'shall be'. The presumption would be that both these expressions have been used by the Legislature purposefully and being mindful of their consequences and relevancy under the scheme of the provisions. Obviously, it has been stated that an aggrieved party against whom the order passed by the Appellate Tribunal may file an appeal. 'May', thus, has to be given its plain and simple meaning as it is always in the discretion of a party to prefer or not to prefer an appeal against the order from which it is aggrieved. However, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st day of July, 2003 is served upon the party to make an application requesting for deciding any question of law arising from such order of the Tribunal. The language of section 35H is practically pari materia to section 35G(1) of the Act. In fact, it does not use the expression `shall' as used in section 35G of the Act. On the contrary, it uses the expression `may' in relation to the option of a party to file an appeal or not. The words used in section 35H are `within 180 days' while in section 35G, the expression used is `shall be filed within 180 days'. Certainly, on its plain reading, the language of section 35G is much more emphatic and commanding. It hardly leaves a scope for doubt that section 35G would be liable to a liberal construction reading into it the provisions of section 35 of the Act in comparison with section 35G of the Act. 22. In the case of Punjab Fibres Ltd. (supra), the Supreme Court has clearly enunciated the principles while relying upon its earlier judgments in the cases of M/s. Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and ors. [2008 (221) E.L.T. 163 (S.C.) = [2007 (14) SCALE 610] and Vinod Gurudas Raikar v. Natio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to subsection (1) of Section 35 makes the position crystal clear that the appellate 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condoned was correct law. 24. The learned counsel appearing for the appellants also relied upon the judgment of the Supreme Court in the case of State of Goa v. Western Builders, 2006(6) SCC 239 where the court took the view that in that case with reference to section 43 of the Arbitration and Conciliation Act, 1996 and the Limitation Act, 1963, the court held that Limitation Act would apply to its limited extent by virtue of section 29(2) of the Limitation Act, what is excluded in respect of the application of setting aside an award under section 34 of the Act of 1996. Applicability of section 5 and section 3 read with schedule to the Limitation Act and the application for condonation of delay upto a period of 30 days can be made before the court in respect of the application under section 34 and not beyond that. The applicability of exclusion of period contemplated under section 14 was held to be applicable. We are unable to see the advantage that the present appellants wish to draw from this judgment. There is no ratio decedendi of this judgment which can be applied to the present case either on facts or on law. Section 43 of the Act read with other provisions of both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r setting aside an arbitral award and the language of the section particularly in face of the expression 'but not thereafter' used in proviso to subsection (3) amounted to an express exclusion within the meaning of section 29(2) of the Limitation Act. This case assumes some significance in the present context for the reason that the findings were recorded by the Supreme Court despite the provisions of section 43 of the 1996 Act. The court while answering the question in the negative held as under: "10. This decision recognises that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. As has been said in Hukumdev Narain Yadav v. Lalit Narain Mishra : (SCC p.146, para 17) "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." 11. Thus, where the legislature prescribed a special limitation of 60 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndone the delay. As stated in the case of Nasiruddin and others (supra) while dealing with the cases under special Act where the statute does not provide power to extend the time or condone the delay, the court does not have the power to do so. The Supreme Court while dealing with the case under the U.P. Sales Tax Act as regards the maintainability of revision beyond the prescribed period of limitation though held that the Appellate Authority was not a court but still specified the principle of law that section 14(2) of the Limitation Act does not in terms apply to the proceedings before them. 31. In the case of The Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Parson Tools and Plants, Kanpur, AIR 1975 SC 1039 cautioning against importing general provisions into special statute, the court held as under: "17. 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 upto a specified time-limit and no further, then the tribunal concerned has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural law and not of substantive law. Rules of procedure whatever they may be, are to be applied only to matters to which they are made applicable by the Legislature expressly or by necessary implication. They cannot be extended by analogy or reference to proceedings to which they do not expressly apply or could be said to be applied by necessary implication. It would, therefore, not be correct to apply any of the provisions of Limitation Act to matters which do not strictly fall within the perview of those provisions. The provisions do not adumbrate any general principles of a substantive law nor do they confer any substantive rights. Therefore, they cannot be permitted to have greater application than what is explicit or implicit in them. (AIR 1964 SC 227). 34. In the case of Nasiruddin others (supra), the Supreme Court had also umbiguously stated the principle that in absence of statutory provision, no inherent powers of the court exist to condone the delay. The unambiguous language of section 35G fixes the period of limitation within a self-contained Code and does not provide for condonation of delay by the High Court. The scheme of the provision is such that it would b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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