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TMI Blog2023 (5) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... ong then also whether excluding the period as observed by Hon ble Supreme Court will bring the appeal filed by petitioner within limitation. The period of limitation of 90 days, which was extended by Hon ble Supreme Court starts from 01.03.2022 and will come to an end on 30-31st of May, 2022. The submission of learned counsel for petitioner that as the period of delay has wrongly been assessed by Appellate Authority in the light of the order of Hon ble Supreme Court in case of Re-cognizance for extension of limitation, the matter be remitted back to the First Appellate Authority is also not sustainable as even after excluding the period between 15.03.2020 to 28.02.2022, filing of an appeal would not come within the extended period of limitation as ordered by Hon ble Supreme Court and therefore, said exercise would serve no purpose. Further in the decision of High Court of Orissa at Cuttack relied on by petitioner in M/S. SHREE UDYOG VERSUS COMMISSIONER OF STATE TAX ODISHA, CUTTACK AND OTHERS [ 2021 (6) TMI 636 - ORISSA HIGH COURT] , the appeal was filed within time limitation, however, the certified copy of the impugned order was filed after expiry of period of limitation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for petitioner submits that Appellate Authority dismissed the appeal only on the ground of limitation. The Appellate Authority has not admitted the appeal observing that it was barred by limitation. He also pointed out that the learned Appellate Authority while dismissing the appeal as barred by limitation has observed that the appeal is barred by 536 days, which is per-se wrong in view of the decision of Hon ble Supreme Court dated 10.01.2022 in Re: Cognizance for Extension of Limitation in Miscellaneous Application No. 21 of 2022 in M.A. No. 665 of 2021 in SMW (C) No. 3/2020. It is contended that in the order dated 10th of January, 2022 Hon ble Supreme Court has ordered that period from 15.03.2020 till 28.02.2022 shall be excluded for the purpose of limitation and therefore, the limitation is to be counted from 1st of March 2022 as directed by Hon ble Supreme Court, therefore, the observations made by First Appellate Authority that appeal is barre by 536 days is absolutely wrong. The Appellate Authority has not taken note of the order passed by the Hon ble Supreme Court and therefore, the matter be remitted back to the First Appellate Authority for reconsiderin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rused the documents placed on record. 7. To appreciate the submission of learned counsel for petitioner I find it appropriate to extract the relevant paragraph of the order passed of Hon ble Supreme Court in Re-cognizance for extension of limitation (Supra), which reads as under :- I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 107 (4) of the Act of 2017 will expire in the end of June. 11. The Division Bench of this Court in Nandan Steels and Power Limited (Supra) has decided the appeal upholding the order passed by Single Bench observing that there is no power to entertain the application for condonation of delay beyond permissible period provided under the Act of 2017. Relevant paragraphs of the order in the said decision are extracted below, which reads as under :- 8. The learned Single Judge held that in terms of Sections 107 (1) and 107 (4) of the CGST Act, the Appellate Authority has no power to entertain an appeal beyond the period of one month as stipulated in Section 107 (4) and the Appellate Authority becomes functus officio. It is also held that there is no power to entertain the application for condonation of delay beyond the permissible period provided under the CGST Act. 9. Mr. Prateek Pandey, learned counsel for the appellant submits that delay that had occasioned was on account of the fact that the Chartered Accountant, who was authorised by the appellant to prefer an appeal, had suffered serious ailment, and therefore, an application for condonation of delay had been filed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the benefits conferred therein cannot be called in aid to supplement the provisions of the Act in question. Accordingly, it was held that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of subject matter and scheme of the special law exclude their operation. 16. The aforesaid principle was reiterated by the Hon'ble Supreme Court in the case of Commissioner of Customs and Central Excise v. Hongo India Private Limited Another, reported in (2009) 5 SCC 791 . At paragraph 35, it was observed as follows: 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 which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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