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TMI Blog2008 (12) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... apati for the Appellant. Jas Sanghvi, Madhur Baya, Vikram Nankani, P.K. Shetty, Ashok Agarwal and V.P. Sawant for the Respondent. JUDGMENT Dr. S. Radhakrishnan, J. - All the above matters have been referred to us by the Hon'ble the Chief Justice, in view of conflicting decisions of two Division Benches on the issue of whether this Court is empowered to condone the delay in filing the appeals under section 35G of the Central Excise Act, 1944 which are filed beyond the prescribed period of 180 days. 2. One Division Bench in the case of Commissioner of Customs v. Sujog Fine Chemicals (India) Ltd., by a judgment and order dated 13-8-2008 held that in the light of section 29(2) of Limitation Act, 1963, in any appeal filed under section 130 of the Customs Act, 1962, this Court is empowered under section 5 of the Limitation Act, 1963 to condone the delay. 3. Whereas another Division Bench in a group of cases in CCE v. Shruti Colorants Ltd. by a judgment and order dated 29-8-2008 involving appeals under section 35G of the Central Excise Act, 1944 held that this Court is not empowered to condone the delay taking recourse to section 5 of the Limitation Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law." 6. The Hon'ble Supreme Court in the case of Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker AIR 1995 SC 2272, has considered in depth the scope and ambit of section 29(2) of Limitation Act, 1963, and has observed in para Nos. 8, 9, 10, 11 and 15 as under: "(8) ... When the aforesaid well-settled tests for deciding whether an authority is a Court or not are applied to the powers and functions of the appellate authority constituted under section 18 of the Rent Act, it becomes obvious that all the aforesaid essential trappings to constitute such an authority as a Court are found to be present. In fact, Mr. Nariman, learned counsel for respondent also fairly stated that these appellate authorities would be Courts and would not be persona designata. But in his submission as they are not Civil Courts constituted and functioning under the CPC as such they are outside the sweep of section 29(2) of the Limitation Act. It is, therefore, necessary for us to turn to the aforesaid pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permits the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former and thus section 29(2) would apply even to a case where a difference between the Special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act. (11) It is also obvious that once the aforesaid two conditions are satisfied section 29(2) on its own force will get attracted to appeals filed before appellate authority under section 18 of the Rent Act. When section 29(2) applies to appeals under section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of sections 4 to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In consequence, sections 4 to 24 of the Limitation Act stand attracted to Letters Patent Appeal insofar as and to the extent to which they are not expressly excluded either by special or local law. Since the rules made on the appellate side, either for entertaining the appeals under clause 15 of the Letters Patent or appeals arising under the Contempt of Courts Act had not expressly excluded, section 5 of the Limitation Act, becomes applicable. We hold that section 5 of the Limitation Act does apply to the appeals filed against the order of the learned Single Judge for the enforcement by way of a contempt. The High Court, therefore, was not right in holding that section 5 of the Limitation Act does not apply. The delay stands condoned. Since the High Court had not dealt with the matter on merits, we decline to express any opinion on merits. The case stands remitted to the Division Bench for decision on merits." (p. 344) 8. The Division Bench in Shruti Colorants Ltd.'s case (supra) has strongly relied on the following two Supreme Court judgments while coming to the conclusion that while entertaining the appeals under section 35G of the Central Excise Act, this Court is not empo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions advanced by the senior counsel for the assessee that the Income-tax Act is a code in itself and section 260A is exhaustive of the matters dealt with therein. It is true that the Income-tax Act forms a code complete in itself but what is important is that the question of exclusion of the provision of the Limitation Act must be separately considered with reference to different provisions of the special Act and not in connection with the provisions of a special Act as a whole. Seen thus we find that section 260A itself provides that the provisions of the Civil Procedure Code relating to appeals, as far as possible, are applicable to the appeals under section 260A. It would mean that section 260A is not exhaustive of all the facets, aspects and matters with regard to the appeals under section 260A. We have to look beyond section 260A relating to appeals filed thereunder with regard to various aspects as provided in the Civil Procedure Code relating to appeals. How can it be said then that section 260A forms a code complete in itself and is exhaustive of the matters relating to appeals filed under the said provision. Mr. S.K. Kakodkar, the senior counsel for the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicate that the application of section 29(2) is excluded except providing a special limitation. Section 260A does not necessarily imply the exclusion of sections 4 to 24 of the Limitation Act." (p. 387) 13. After analysing the aspect in depth, the Full Bench clearly came to a conclusion that in such appeals, the High Court is empowered to have recourse to section 5 of the Limitation Act. 14. Unfortunately the two judgments of the Supreme Court in the cases of Mukri Gopalan (supra) and also of Kartick Chandra Das (supra) were not brought to the notice of the Division Bench which decided the Shruti Colorants 'case (supra). In fact the above two judgments of the Supreme Court deal with the scope and purport of section 29(2) of Limitation Act exhaustively, clearly holding that unless expressly-excluded, Civil Courts are empowered to have recourse to section 5 of Limitation Act to condone the delay. 15. Similarly, unfortunately even the Full Bench judgment of our Court in the case of Velingkar Bros. (supra) was not brought to the notice of the above Division Bench which dealt with the case of Shruti Colorants (supra). In fact in that case the expression "appeal shall be fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od prescribed by the Schedule of the Limitation Act. (iii) Application should be before a Civil Court. 24. Section 35G of the Central Excise Act satisfies all the above three conditions. 25. Mukri Gopalan 's case (supra) categorically states that if the above requirements are satisfied, the consequences contemplated under section 29(2) would automatically follow. 26. In Mukri Gopalan's case (supra) it was found that there was no express exclusion anywhere in the Rent Act, taking out the applicability of section 5 of Limitation Act. In the present case also there is no express exclusion of section 5 of Limitation Act in section 35G of Central Excise Act, and the same cannot be lightly implied or inferred. 27. In Mukri Gopalan 's case (supra) it is categorically stated that it is not necessary to expressly state in a special law that the provisions of section 5 of Limitation Act shall apply. 28. In Mukri Gopalan 's case (supra) the Hon'ble Supreme Court categorically states that an express mention in the special law is necessary only for any exclusion. 29. Similarly, the Hon'ble Supreme Court again reiterated in Kartick Chandra Das' case (supra) that section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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