9911796707
TMI Blog2004 (5) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... . The reference application was filed in respect of an order of the Appellate Tribunal passed on 17-12-2001 and served on the petitioner on 27-3-2002. The impugned order whereby the petitioner's reference application under Section 45(1) of the DST Act was rejected is challenged on the ground that delay in filing the reference application ought to have been cordoned upon an application of the provisions of Section 5 of the Limitation Act, 1963. The Sales Tax Appellate Tribunal held that the DST Act was a specific law and which made special provisions for limitation, different from that provided by the Limitation Act and, therefore, the applicability of Section 5 of the Limitation Act was excluded. And, as a consequence of this conclusion, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin 60 days from the date of such order. In case the application for reference is not filed within this period, then, in terms of the proviso to Section 45(1) of the DST Act, the Appellate Tribunal may, if it is satisfied that the person seeking the reference was prevented by sufficient cause from presenting the application within the said period of 60 days, allow the application to be presented within a further period "not exceeding thirty days". Since this is the provision which is in question, it is set out herein below :- "45. Statement of case to the High Court Within - (1) passed by the Appellate Tribunal sixty days from the date of an order under sub-section (6) of section 43, the dealer or the Commissioner may, by application in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act, 1962 reads as under :- "Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days." The proviso to Section 35 (1) of the Central Excise Act, 1944 reads as under :- "Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days." 4. The Division Beach of this Court, in both the cases referred to above, held that these provisos specificall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to section 35 (1) of the said Act, one would find that they are essentially the same in that they both permit the presentation of an appeal beyond the limitation period if the appellant is able to satisfy the appellate authority that the appellant was prevented by sufficient cause from presenting the appeal within the prescribed period of limitation. The difference in the two provisions lies in the fact that while section 5 of the Limitation Act, 1963 is "open-ended", the proviso to section 35(1) also stipulates that such appeal which is beyond time can only be presented within a further period of thirty days and not thereafter. By prescribing the maximum period during which an appeal may be presented beyond the limitation prescribed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(1) of the DST Act is even more restrictive than the Provisos to Section 128 (1) and Section 35 (1) of the Customs Act, 1962 and the Central Excise Act, 1944 respectively. This is so because the words contained in those two Acts are "allow it to be presented within a period of thirty days", whereas the words used in the proviso to Section 45(1) are "allow it to be presented within a further period not exceeding thirty days". The exclusion of the applicability of Section 5 of the Limitation Act is more accentuated in the case of the proviso to Section 45 (1) of the DST Act. Therefore, it is not possible for us to agree with the contention of the learned counsel for the petitioner that there is no express exclusion of the applicability of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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