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TMI Blog1999 (7) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... ding three years prior to his arrival on 2-10-1996. It is his case that on his arrival on 2-10-1996 the unaccompanied baggage despatched by him from Dubai arrived at Thiruvananthapuram on 9-10-1996. According to the petitioner, in Ext. P1 bill the name and address of the sender and consignee was inadvertently shown as Mrs. Shyla Begam Subaida Beevi, Kollam instead of the petitioner, Mohammed Ibrahim Abdul Hameed. On coming to know about the mistake committed by the cargo staff a fax message was sent by Lufthansa Cargo Ways to the Indian Airlines to amend and read the name of shipper and consignee as the petitioner, instead of Shyla Begum Subaida Beevi. The said communication has been marked as Ext. P2. According to the petitioner, the Clearing Agency issued necessary certificate stating that the said mistake was committed by the staff due to oversight and that the passenger is not responsible for the same, which certificate is maked as Ext. P3. Thereafter the Indian Airlines authorities issued necessary delivery order in the name of the petitioner so as to enable him to take delivery of the goods and based on the delivery order the petitioner filed baggage declaration for the clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of hearing the case. However under Ext. P10 the revision application was rejected as time barred. The said order passed by the Government of India, Ministry of Finance (Department of Revenue) dated 15-12-1997 is reproduced hereunder :- "This revision application has been filed by Shri Mohd. Ibrahim Abdul Hameed against order-in-appeal No. 333/96-Cus., dated 24-12-1996 passed by the Commissioner of Customs (Appeals), Chennai. The applicant in his2. application for condonation of delay in filing the revision application has pleaded that this delay was on account of his ill health. Shri P.V. Dinesh,3. Advocate appeared for personal hearing on 10-12-1997 reiterated the submissions made in the revision application. The ld. Advocate pleaded that they have a good case on merit. It was however, told that since the delay is beyond the statutory limit it cannot be condoned. Records reveal that4. while the order-in-appeal was communicated to the applicant on 24-12-1996, the revision application was received in the R.A. Unit only on 20-8-1997 i.e., not only after the expiry of the stipulated period of three months as provided under Section 129DD(2) of the Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 129DD(2) of the Customs Act, 1962. Learned standing counsel has also submitted that this court in the decision reported in 1996 (83) E.L.T. 30 (Ker.) = 1996 KLJ (Tax Cases) 163 did not have the occasion to consider the provisions of Section 35 of the Central Excises and Salt Act, 1944 or the provisions under Section 129DD(2) of the Customs Act, 1962. The learned Judge, after considering the rival submissions made by the respective counsel appearing on either side passed the reference order. Paragraph 4 of the said reference order is relevant for the purpose of considering the reference. The said para reads thus : - "I have perused two judgments relied on by the petitioner. Though the aforesaid two decisions support the stand taken by the petitioner since the said two decisions did not refer to or consider the effect of the provisions under Section 35 of the Central Excise Act or Section 129DD(2) of the Customs Act, I am of the view that said decisions require reconsideration by a Division Bench. I accordingly refer the matter to the Division Bench. Learned counsel submitted that urgent orders are required in the case. Office will place the papers of this case before the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power conferred under sub-section (4) of Section 129DD of the Customs Act and set aside Ext. P10 order passed by the second respondent." 9.Learned counsel has urged that these grounds in the Original Petition should be answered in the affirmative. In support of his contention, Mr. Lal George relied on the following decisions :- (i)The Commissioner of Sales Tax, U.P. v. M/s. Madanlal Dan Sons (AIR 1977 SC 523) (ii)The Sahkari Ganna Vikas Samiti Ltd. v. Mahabir Sugar Mills (O) Ltd. (AIR 1982 SC 119) (iii)Gopalan v. Aboobacker (1995 (2) KLT 205) and (iv)Standard Treads Pvt. Ltd. v. Collector of Central Excise [1996 (83) E.L.T. 30 (Ker.) = 1996 KLJ (Tax Cases) 163] The judgment reported in 1996 (83) E.L.T. 30 (Ker.) = 1996 KLJ (Tax Cases) 163 (Supra), while referring to a similar provision, Section 35 of the Central Excises and Salt Act, 1944 for condoning the delay but not deciding on the general principles held that this court has got power to condone the delay even after the expiry of the prescribed time limit and following the said decision a learned single Judge of this court in the decision rendered in O.P. 17509/94 dated 17-7-1996 also held that the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any order passed under Section 128A, where the order is of the nature referred to in the first proviso to sub-section (1) of Section 129A, annul or modify such order - Explanation. - For the purposes of this sub-section, "order passed under Section 128A" includes an order passed under that section before the commencement of Section 40 of the Finance Act, 1984, against which an appeal has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commencement to the Appellate Tribunal. An application under(2) sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made : Provided that the Central Government may, if it is satisfied that the application was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow it to be presented within a further period of three months." Since we are construing the provisos 1 and 2 of the said section, sub-clauses (3) to (6) are not necessary to be reproduced here. 14.We shall now advert to the decisions cited by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s served upon the respondent was lost by him. The loss of that copy necessitated the filing of an application for obtaining another copy of the order of the Assistant Commissioner." The Supreme Court, while dismissing the S.L.P. filed by the Commissioner of Sales Tax, U.P. held the High Court has correctly answered the questions referred to it in favour of the dealer and against the revenue. The Sahkari Ganna Vikas Samiti Ltd. v. Mahabir Sugar Mills (P) Ltd., AIR 1982 S.C. 119 (S. Murtaza Fazal Ali and A.P. Sen, JJ.) was next relied on by counsel for the petitioner. The only ground on which the High Court of Allahabad reversed the judgment of the Commissioner entertaining the appeal was that section 5 of the Limitation Act was not applicable. In that case the High Court itself found that so far as the Commissioner of the Division is concerned he was undoubtedly a Revenue Court but it held that as the matter arose out of U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, the Commissioner was exercising appellate jurisdiction as an authority under the said Act and was therefore persona designata. The Supreme Court held that there is no doubt that the Cane Commissioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or application all the provisions contained Ss.4 to 24 (inclusive) would apply insofar as and to the extent to which they are not expressly excluded by such special or local law." 16.Standard Treads v. Collector of Central Excise, 1996 (83) E.L.T. 30 (Ker.) = l996 KLJ (Tax Cases) 163 (V.V. Kamat G. Sivarajan, JJ.) was heavily relied on by learned counsel for the petitioner. The learned referring Judge was also a party to the above judgment. Counsel submitted that courts should adopt a liberal approach in the matter of condonation of delay and invited our attention to the reasons for adopting such approach in the said judgment. Two things are clear from the above judgment. Section 129DD of the Customs Act was not for consideration before the learned Division Bench. In the above case the appeals before the Customs, Excise and Gold (Control) Appellate Tribunal, Madras have been dismissed confirming the order passed by the Collector of Central Excise (Appeals) as the appeal having been filed after lapse of more than a year after the receipt of the order of the original authority, which according to the petitioner therein, is contrary to the statutory provisions of sec. 35 of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistration of justice and the spirit is that it is not to be considered as an obstruction in the process of justice. It is, therefore, implicit in the process of a desire to have the end of a litigation in a context that the conduct of the party has to be settled in a rational common sense and pragmatic manner. The court has to see and be vigilant that technical consideration should not be allowed to be pitted against each other, keeping in mind that substantial justice would have a preference because nobody can be understood properly in a claim of vested right of injustice, which would be the result. In this context, the last aspect is in the nature of a sentinel search light in the situation. Judiciary gets its respect in the legal order not on account of its power to legalise injustice on technical grounds. But, it has the capacity and purpose to remove injustice wherever it is in sight and this is what is understood and pointed out by the apex court as justice-oriented approach in regard to the matter being thrown out at the threshold of the concerned proceedings." A reading of the above observation would only reveal that the reasons given are general in nature, but not with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limitation Act, in construing a statutory provision. There is no scope for adopting a liberal approach in the matter of condonation of delay. 19.In this background we shall now advert to the decisions cited by Mr. K. Ramakumar. In Jokkim Fernandez v. Amina Kunhi Umma, 1973 KLT 138 (FB) (T.C. Raghavan, C.J., V.P. Gopalan Nambiar G. Viswanatha Iyer, JJ.) this court held that the Limitation Act, 1963 applies only to courts and it prescribes periods of limitation in respect of suits, appeals and applications filed only in courts and that Sec. 18 of the Buildings (Lease and Rent Control) Act is clear that the appellate authority constituted under it is not a court but only an authority persona designata and even if the power under Sec. 5 of the Limitation Act, 1963 were to be read into special or local law by reason of the provisions of Sec.29 of the Limitation Act that power is exercisable only by courts and not by Tribunals or other authorities such as the appellate authority in that case. The Full Bench also held that the Kerala Buildings (Lease Rent Control) Act is a self-contained code in the matter of prescribing the period of limitation and granting exemption therefrom. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubramonian Poti J. speaking for the Bench, has observed that the law of limitation is confined in its application to suits, appeals and applications and where a creditor does not seek to enforce a claim by resort to a suit the law of limitation has no part to play. In Sadasiva Saralai v. Government of Kerala, 1988 (2) KLT 610 (Sivaraman Nair Fathima Beevi, JJ. the Bench held that the Forest Tribunal under the Private Forests (Vesting Assignment) Act, 1971 cannot condone the delay in filing the application before it and that the Tribunal, with its limited jurisdiction, cannot be treated as court for the purpose of Limitation Act and that therefore the application for condonation of delay in filing the original application was not maintainable and that the Tribunal has no jurisdiction to entertain the application filed under Sec. 5 of the Limitation Act for condoning the delay in filing the application under Sec. 8 of the Act. Kavi Rajan v. Co-operative Tribunal, 1989 (2) KLT 895 (Malimath, C.J. Bhaskaran Nambiar, J.) is a case arising under the Co-operative Societies Act, 1969 (Kerala). Malimath, C.J. speaking for the Bench, held that the Co-operative Tribunal is not a court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld thus : "It should be borne in mind that rules of equity have no application when there are definite statutory provisions specifying the grounds on the basis of which the stoppage or suspension of running of time can arise. While the courts necessarily can checkmate or fight fraud, it should be equally borne in mind the statutes of limitation are statutes of repose." S.T. Commr., U.P. v. Parson Tools Plant, Kanpur (AIR 1975 SC 1039) is a case of revision filed beyond time prescribed by Sec. 10 of the U.P. Sales Tax Act. The Supreme Court held thus : "Where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give 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 law-giver; more so if the statute is a taxing statute." A learned single judge of the Madras High Court in The Collector v. N. Sundaram [1988 (2) LW 461] has also taken the same view that the revision filed beyond the period of 60 days is not competent and that Sec. 5 of the Limitation Act is inapplicable to Rent Cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of reopening of the Court after vacation. In my opinion, the argument of the learned counsel for the14. petitioner in this regard cannot at all be countenanced. This is not contemplated by the provisions of the Act. It is settled law that what is not permitted to be done directly cannot be permitted to be done indirectly. If the original period of limitation expired during the vacation on 17-5-1996 and if the revision has not been filed on the day when the court re-opened on 10-6-1996, the discretionary period of one month as provided for in the proviso to Sec. 25(2) of the Act will start running from the date of expiration of the original period of limitation during the vacation viz. 17-5-1996. The power of this court is restricted and not unlimited as in the case of appeals under the Code of Civil Procedure, by the application of Sec. 5 of the Limitation Act, where the court can condone any delay for sufficient reasons. In the instant case, the last date for filing of revision was on 17-5-1996 and the revision not having been filed on the date of re-opening of the court on 10-6-96, there is no discretion left to this court but to reject it on the ground that it is barr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said section says that any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Collector of Central Excise may appeal to the Collector of Central Excise (Appeals) within three months from the date of the communication to him of such decision or order. The proviso to Sec. 35(1) provides that the Collector (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months allow it to be presented within a further period of three months. The above section is in pari materia with Sec. 129DD of the Customs Act which also provides for filing of revision under the said section to the Government of India within three months from the date of communication of the decision or order and a further period of three months is also provided for the aggrieved parties to present the revision by disclosing sufficient cause that the party was prevented from presenting the appeal within the aforesaid period of three months. 29.The courts, in the judgments referred to above, held that the courts have to strictly construe the provisions and has no juris ..... X X X X Extracts X X X X X X X X Extracts X X X X
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