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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 ..... 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 they were raising Cenvat Credit for manufacture of CPC Blue Crude TCB. According to the case put forth by the Revenue, as per the provisions of Rule 57C of the Rules, no credit of the specified duty is allowed on such quantity on inputs which is used in manufacture of final products which are exempted from the whole of the duty of excise leviable thereon or are chargeable to nil rate of duty. In the case of the assessee, 2,26,350 kgs of CPC Bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 30th July 2007 is stated to have been received by the Department on 21st August 2007 and despite the fact that the draft Appeal was received on 29th March 2008, still the Appeal was filed on 29th April 2008. Thus, the delay is hardly appropriately explained. As already noticed, the Court is primarily concerned with the aspect relating to jurisdiction rather than sufficiency of cause for condonation of delay in these Appeals. Thus, we proceed to discuss this legal issue. 5. Before we proceed to deliberate on the legal issues arising in the present case, it is necessary to note that Section 35G of the Act as well as Section 130 of the Income Tax Act, 1961, came to be repealed by the National Tax Tribunal Act, 2005 (49 of 2005) with effect from 28th December 2005. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this subsection shall be- (a) filed within one hundred and eighty days from the date on which the order appealed against is received b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 filed under the provisions of the Civil Procedure Code, 1908. 10. The law of Limitation from its inception has been construed on the principle of reasonable and plain construction. In the case of Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee, AIR 1977 SC 965, the Supreme Court said, "To be liberal in meaning is to see the skin and miss the soul. The judicial key to construction is the composite perception of the deha and the dehi of the provision." 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 feuded on public policy. It is enshrined in the maxim "interest reipublicae ut sit finis litium" (it is for the general welfare that a period be part to litigation). Limitation as such does not destroy the rights of the parties but bars a remedy which otherwise was available to the party within the period prescribed. Object being that an unlimited and perpetual threat of litigation is avoided as it leads to disorder and confusion and creates insecurity and uncertainty. In other words, it also helps in advancin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iterating 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 case of Municipal Corporation of Delhi and others v. International Security & Intelligence Agency Ltd., (2004) 3 SCC 250, the Supreme Court took the view that law of limitation operates with all its rigour and equitable considerations have no place in applying it. 17. The hardship or equitable grounds per se may not grant power to the Court to condone the delay in face of specific provisions of the Act. Dealing with appeal under Section 39 of the Arbitration Act, 1940 with regard to the provisions of limitation, the Supreme Court in the case of P.K. Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation 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 of claim, the course of equity even there the court would decline to grant a relief to the applicant. Laches, thus, are capable of prejudicing and existing legal right. (Referred in Blacks Law Dictionary, 8th Edition). This all is sufficiently indicative of enforcement of law of limitation with all its vigour except for the exceptions carved out in the provision itself. This principle squarely applies with greater impact upon the special legislations providing a special period for remedies available under that statute. In the present cases, we are concerned with the language of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, in the continuation of the same sentence, it has been commanded by the Legislature that such appeal under the subsection shall be filed within the prescribed period of 180 days from the date the order of the authority is received by the party. There is no justification whatsoever to avoid the consequences of the expression 'shall' by reading out as 'may'. Period of limitation can hardly be left to the discretion of the party as it is the command of the Legislature that an act should be done within the specified period and obviously, thereafter it would be hit by the bar of limitation cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. National Insurance Co. Ltd., 1991(4) SCC 333 and finally concluded that: 6. At this juncture, it would be appropriate to take note of Section 35G which provides for an appeal to the Appellate Tribunal which specifically says that it has to be within three months from the date on which the impugned order is communicated. But proviso to Section 35G permits the Appellate Tribunal to allow the appeal even after the aforesaid limitation prescribed in clause 1 is expired if the Tribunal is satisfied that there was sufficient cause for not filing the appeal within the prescribed time. No such provision f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 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." 9. Above being the position, the High Court was justified in holding that there was no power for condonation of delay in filing reference application." 23. As is obvious from the bare reading of section 35G of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 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 the Acts places the referred case on entirely different footing and would be governed by different principles of law. 25. Let us now deal with certain examples of special legislation where the courts have held that provisions of the Limitation Act would not be applicable for expressed or implied exclusion. 26. In the case of State of Karnataka v. Laxman, 2005 (8) SCC 769, the Supreme Court clearly stated that Law of Limitation is a statute of repose and not an quitable piece of legislation. The court then while considering the provisions of section 18(1), 18(2) and 18(3) of the Land Acquisition Act, 1894 clearly held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the specific inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. 12. As far as the language of Section 34 of the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of Section 14(2) o the Limitation Act. 18. We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the lawgiver; more so if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted 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 be difficult to import or read into it the provisions of the Limitation Act, 1963 particularly, section 5. The right to file an appeal under section 35G is a statutory right and has to be exercised in the mode, manner and limitation specified in the special statute itself. The language of the provisions seen in conjunction with legislative intent and the objects of expeditious disposal sought to be achieved would exclude the application of section 5 of the Limitation Act by necessary implication. Once the provisions of section 5 are not attracted, this court inherently would have no power to condone the delay in filing the present Appeals irrespective of the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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