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TMI Blog2024 (7) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... od of forty-five days from the date of the election of the returned candidate. In New India Assurance Company Limited [ 2020 (3) TMI 1368 - SUPREME COURT] , the special statute, the Consumer Protection Act, provided a specific time period for responding to the complaint and further provided a period of fifteen days; which further period was to be granted at the discretion of the District Forum. When there is a period provided for initiating a proceeding and it is also provided that the authority/tribunal/court before which a proceeding is to be initiated would have the power to condone the delay if sufficient cause for the delay is shown, without specifying the period within which delayed proceedings can be initiated, then necessarily the provision under Section 5 of the Limitation Act would be fully applicable; or rather, the provision would be similar to Section 5 of the Limitation Act. Further, The Central Board of Indirect Taxes and Customs has by Notification No. 53 of 2023-Central Tax, dated 02.11.2023 (S.O. 4767 (E)) extended the time for filing appeal against an order passed by the Proper Officer on or before 31.03.2023 under Sections 73 and 74 of the BGST Act. This in fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (PW) Slapper v. Excise and Taxation Officer [(2020) 17 SCC 692] and Assistant Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline Consumer Health Care Limited [(2020) 19 SCC 681], held that since there is no express exclusion of Section 5 of the Limitation Act; it would stand attracted. It was declared that there is power in the appellate authority to extend the period for filing the appeal even beyond the further period provided of one month; after the limitation period of three months, and condone the delay occasioned invoking the power under Section 5 of the Limitation Act. 5. The decision of the Calcutta High Court, we remind ourselves is not a binding precedent and has only a persuasive effect. We have carefully looked at the decisions of the Hon ble Supreme Court cited by the High Court; which are binding on us. 6. In New India Assurance Company Limited (supra), a Constitution Bench of five Judges considered the provisions of Section 13 (2) (a) of the Consumer Protection Act, 1986, which provided for the opposite party to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f thirty days; with an application to condone the delay, which power was conferred on the appellate authority. It was held that the Appellate Authority was not empowered to condone the delay beyond the aggregate period of sixty days from the date of order or service of proceeding on the assessee; as the case may be. The Hon ble Supreme Court also considered the question as to whether the Apex Court or the High Court ought to entertain a challenge to the assessment order on the sole ground that the statutory remedy of appeal against the order stood foreclosed by the laws of limitation. The question was answered in the negative and it was held that even under Article 142 of the Constitution of India, it is one thing to say that prohibitions or limitations in a statute cannot come in the way and it is quite a different thing to say that while exercising jurisdiction under Article 142, the Supreme Court can altogether ignore the substantive provisions of a statute dealing with the subject and pass orders concerning an issue which can be settled only through a mechanism prescribed in that statute. It was held indubitably, the powers of the High Court under Article 226 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter and the scheme of the special law exclude their operation (sic). The applicability of the provisions of the Limitation Act, hence, had to be judged from the terms of the special law and not merely based on the Limitation Act. 11. Looking at the Central Excise Act, Hongo India (P) Limited (supra), found that under Section 35, an appeal to the Commissioner and under Section 35B, an appeal to the Appellate Tribunal were to be preferred within sixty days and three months respectively from the date of the communication of the order, with an express provision to condone the delay of thirty days in the former and any time beyond the prescribed period, if there is sufficient cause shown in the latter case. Section 35EE; provided for a revision to be preferred within three months from the date of communication, with further power conferred on the revisional authority to condone the delay for a further period of ninety days, if sufficient cause is shown. However, Section 35G providing an appeal to the High Court and Section 35H which speaks of an application for reference to the High Court requires such proceeding to be initiated within a period of 180 days with no provision to extend t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this Section are expressly excluded in the case of an election petition. It is 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. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 81 were not complied with. In Section 81 there was a stipulation that an election petition shall be filed within a period of forty-five days from the date of the election of the returned candidate. In New India Assurance Company Limited (supra), the special statute, the Consumer Protection Act, provided a specific time period for responding to the complaint and further provided a period of fifteen days; which further period was to be granted at the discretion of the District Forum. Any failure to respond within such extended time would invite the consequence of an ex-parte decision based on the evidence adduced by the complainant. In both these situations, the Hon ble Supreme Court; respectively a three Judges Bench and a five Judges Bench found that the provision is mandatory and not directory. In the former case, there is express exclusion of Section 5 of the Limitation Act and the latter, the provision was found to be different from Order 8 Rule 1 of the CPC. 14. In Hongo India (P) Limited (supra), the provisions of the statute, the Central Excise Act, providing for different periods for different proceedings were examined to find that wherever the legislature inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was relied on in International Asset Reconstruction Company of India Limited v. Official Liquidator of Aldrich Pharmaceuticals Limited and Others [(2017) 16 SCC 137], while dealing with the question as to whether Section 5 of the Limitation Act is applicable to appeals from the order of the Recovery Officer to the Debt Recovery Tribunal; to hold in the negative. Sakuru (supra) was also approvingly referred to in Superintending Engineer/Dehar Power House Circle (supra). 18. Further, The Central Board of Indirect Taxes and Customs has by Notification No. 53 of 2023-Central Tax, dated 02.11.2023 (S.O. 4767 (E)) extended the time for filing appeal against an order passed by the Proper Officer on or before 31.03.2023 under Sections 73 and 74 of the BGST Act. This in fact extends the period for filing a delayed appeal beyond the one-month period as provided under Section 107 (4) of the BGST Act, on following the special procedure prescribed under the said Notification. We have to further notice that the special procedure provided an appeal to be filed on or before 31.01.2024, if 12.5% of the remaining amount of tax in dispute subject to a maximum of twenty-five crore rupees is paid. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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