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TMI Blog2004 (4) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... the special law exclude their operation. Having examined the provisions of Section 35 of the said Act we have come to the conclusion that operation of Section 5 of the Limitation Act, 1963 is excluded to the extent indicated above. We find that there is no distinction between the present case and that of Delta Impex [ 2004 (2) TMI 81 - HIGH COURT OF DELHI] . The Tribunal was correct in upholding the decision of the Commissioner (Appeals) that the Commissioner (Appeals) had no power to condone the delay beyond the further period of 30 days from the expiry of the time within which the appeal ought to have been filed. The Central Excise Act, 1944 is a complete code and the provisions of Section 35 clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to entertain any application for condonation of delay or to entertain the appeal itself. The court upheld the decisions of the Commissioner (Appeals) and the Tribunal, stating that the Commissioner (Appeals) had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. Section 35(1) prescribes that the appeal must, in the first instance, be filed within sixty days from the date of the communication of the decision or order which is subject matter of the appeal. The proviso to Section 35(1) enables the Commissioner (Appeals) to permit the filing of the appeal beyond the sixty days referred to above provided that he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the sixty days prescribed. However, on a plain reading of the proviso, it does appear that the Commissioner (Appeals) can exercise such power only within a further period of thirty days . In other words, the appeal can be filed only up to 90 days from the date of communication of the decision or order appealed from. The first sixty days being the initial period and the further thirty days being at the discretion of the Commissioner (Appeals). 3. It is an admitted position that the appeal that was filed before the Commissioner (Appeals) on 27-8-2002 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation. - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. The learned Counsel for the petitioner argued that there is no denying that Central Excise Act, 1944 is a special law and it prescribes its own period of limitation for preferring an appeal before the Commissioner (Appeals) and, therefore, Section 29(2) of the Limitation Act, 1963 and consequently Section 5 thereof would come into play. The counter argument is that the provisions contained in Sections 4 to 24 (inclusive) of the Limitation Act, 1963 apply only in so far as, and to the extent to which, they are not expressly excluded by the law. The proviso to Section 35(1) prescribes the very period during which the delay can be condoned. It has not been left open-ended and thus there is an expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to examine the scheme of the special law, and the nature of the remedy provided therein. Considering these aspects, the Court will have to find out whether the Legislature intended to provide a complete code by itself which alone should govern the matters provided by it. On examination of the relevant provisions, if it becomes clear that the provisions of Section 5 of the Limitation Act are necessarily excluded, then the said provisions cannot be called in aid to supplement the provisions of the Act. It is open to the Court to examine whether and to what extent the nature of the provisions contained in Limitation Act in comparison with the scheme of the special law are excluded from operation. When Section 128 of the Customs Act specifically provides the period of limitation and a further period of 30 days only during which the applicant was prevented by sufficient cause from presenting an appeal can be condoned, meaning thereby that the Legislature has given a mandate that delay could be condoned only for the specified period, prescribed in the proviso to Section 128 of the Act, and not further. 14. In the instant case, a separate period of14. limitation is provided, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Procedure Code. The minority view expressed by Das Gupta, J., was that the Income Tax Officer could not regarded as a Court . This case was cited for the purpose that the Commissioner (Appeals) could also be regarded as a Court and therefore the provisions of Section 5 of the Limitation Act, 1963 would apply. But, before Section 5 is at all applicable, the hurdle presented by Section 29(2) of the Limitation Act, 1963 has to be crossed. We have seen that Sections 4 to 24 (inclusive) of the Limitation Act, 1963 apply only in so far as, and to the extent to which, they are not expressly excluded by the special law. The proviso to Section 35(1) expressly provides for condonation of delay up to thirty (30) days and no further. Thus, if at all Section 5 of the Limitation Act, 1963 is to apply it is only within the period of thirty days and to that extent only. The decision of the Supreme Court in the case of Lalji Haridas (supra) does not in any way alter this conclusion and is of no use to the petitioner the present petition. 10. In the case of Commissioner of Income-tax (supra), the question that came up for determination was whether the time taken by the dealer in obtaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressly excluded. This is so because in the special law, namely, the said Act (Central Excise Act, 1944), the period of limitation as well as the period during which delay can be condoned are specifically inbuilt in Section 35 itself. In such a situation, it is difficult to accept the contention that Section 5 of the Limitation Act will apply. When this section expressly provides not only the limitation period but also the period during which a condonation of delay application may be entertained, it becomes clear from the scheme of this special law that the operation of provisions of Section 5 of the Limitation Act, 1963 are excluded. 11. In the case of Hukumdev Narain Yadav (supra), the Supreme Court was, inter alia, examining the question as to whether, by virtue of Section 29(2) of the Limitation Act, the provisions of Sections 4 to 24 of the said Act would be applicable to the filing of election petitions? The Supreme Court held that the provisions of Section 5 of the Limitation Act (which are included in Sections 4 to 24 of the said Act) does not govern the filing of elections petitions or their trial. While holding so, the Supreme Court observed as under in paras 17 18 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n election petition under Section 81 it should equally apply to Sections 82 and 117 because under Section 86 the High Court cannot say that by an application of Section 5 of the Limitation Act, Section 81 is complied with while no such benefit is available in dismissing an application for non-compliance with the provisions of Sections 82 and 117 of the Act, or alternatively if the provisions of the Limitation Act do not apply to Section 82 and Section 117 of the Act, it cannot be said that they apply to Section 81. Again Section 6 of the Limitation Act which provides for the extension of the period of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to an election petition. Similarly, Sections 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial. 18. It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Lease and Rent Control) Act, 1965 had the power to condone the delay in the filing of an appeal before it under the said Section? The relevant Section 18 under consideration in that case was as under :- Appeal.18. (1)(a) The Government may, by general or special order notified in the Gazette, confer on such officers and authorities not below the rank of a Subordinate Judge the powers of appellate authorities for the purposes of this Act in such areas or in such classes of cases as may be specified in the order. (b) Any person aggrieved by an order passed by the Rent Control Court may, within thirty days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the thirty days aforesaid, the time taken to obtain certified copy of the order appealed against shall be excluded. (2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal. (3) The appellate authority shall send for the records of the case from the Rent Control Court and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal under Section 18, a period of limitation which is different from the period prescribed by the Schedule to the Limitation Act. The Court further observed that once the aforesaid two conditions were satisfied, Section 29(2) on its own force would get attracted to appeals filed before the appellate authority under Section 18 of the Limitation Act and that when Section 29(2) applied to appeals under Section 18 of the Limitation 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, also get attracted. The Supreme Court categorically observed as under : It was obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before the appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of the Limitation Act can be said to have been satisfied. Clearly, Section 5 of the Limitation Act, 1963 was held to be applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Limitation Act were applicable to an application challenging an award, under Section 34 of the Arbitration and Conciliation Act, 1996. While considering the question, the Supreme Court was of the view that the issue would have to be resolved with respect to the language used in Section 29(2) of the Limitation Act and Section 34 of the Arbitration and Conciliation Act, 1996. Analysing the provisions of Section 29(2) of the Limitation Act, the Court held that the provisions of Sections 4 to 24 of the Limitation Act would apply when:- (i) there is a special or local law which prescribes a different period of limitation for any suit, appeal or application; and (ii) the special or local law does not expressly exclude those sections. Insofar as the first condition was concerned, there was no dispute that the Arbitration and Conciliation Act, 1996 was a special law and that Section 34 thereof provided for the period of limitation different from that prescribed under the Limitation Act. The bone of contention before the Supreme Court in the case was whether there was any exclusion expressed in Section 34 of the Arbitration and Conciliation Act, 1996 with regard to the applicability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords but not thereafter , the proviso may not amount to an express exclusion of, inter alia, the provisions of Section 5 of the Limitation Act, 1963. But, a deeper examination, would show that such a conclusion would not be in order. The said observation in paragraph 8 of the decision in Union of India v. Popular Construction Co. (supra), is based on the case of Mangu Ram (supra). The issue in that case concerned the limitation for filing of an application under Section 417 of the Code of Criminal Procedure, 1898 before the High Court for special leave to appeal against an order of acquittal. The said Section 417 (so much as is relevant) is as under: 417. (1) xxxx xxxx xxxx xxxx (2) xxxx xxxx xxxx xxxx (3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grant special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (4) No application under sub-section (3) for the grant of special leave to appeal from the order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause for not preferring the application within the time limit of sixty days prescribed in sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. Section 417(4) of the Code of Criminal Procedure, 1898 is quite different from the proviso to Section 35(1) of the said Act. The former only prescribes a period of limitation, while the latter does not merely specify a period of limitation but, it goes further and also specifies the period during which a condonation of delay application can be filed. Thus, the observation of the Supreme Court in Mangu Ram (supra) and reiterated in Union of India v. Popular Construction (supra) to the effect that mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5 , does not come in the way of construing the proviso to Section 35(1) of the said Act as excluding the applicability of Section 5 of the Limitation Act, 1963. If one were to compare the provisions of Section 5 of the Limitation Act, 1963 and the proviso to Section 35(1) of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndone the delay in filing the revision can be exercised for condoning any delay which does not exceed one month over and above the period liable to be excluded from computing the period of limitation by reference to Sections 4 to 24 of the Limitation Act. Clearly, the Supreme Court held that delay could be condoned only to the extent of the condonable period prescribed by the proviso to Section 25(2) of the said Tamil Nadu Act. 17. In view of the foregoing discussion, we find that there is no distinction between the present case and that of Delta Impex (supra). The Tribunal was correct in upholding the decision of the Commissioner (Appeals) that the Commissioner (Appeals) had no power to condone the delay beyond the further period of 30 days from the expiry of the time within which the appeal ought to have been filed. The Central Excise Act, 1944 is a complete code and the provisions of Section 35 clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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