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TMI Blog2004 (9) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) empowered to hear appeals u/s 35 of Central Excise Act, in our considered view, cannot be treated to be forum functioning as a court nor the said authority can be said to have trappings of the court. The Commissioner of Excise (Appeals), though, is a appellate authority u/s 35 but his decisions do not satisfy the essential tests of judicial pronouncement. He cannot be said to possess the attributes of a court. In the entire Central Excise Act, there is no provision which even makes the Commissioner of Central Excise (Appeals) a court for limited or specific purpose. The appellate authority u/s 35 of the Central Excise Act is only executive authority; true it is while hearing the appeals contemplated u/s 35, the Commissioner of Central Excise (Appeals), acts quasi judicially. But that would not make Commissioner, Central Excise a court or an authority functioning as a court or having the trappings of a court. We, therefore, hold that Section 29(2) of the Limitation Act, 1963 is not attracted to the appeals preferred u/s 35 of the Central Excise Act and consequently Section 5 of the Limitation Act is not applicable to such appeals. Even otherwise, as per Section 35, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or counsel for the revenue, on the other hand, submitted that the Commissioner of Central Excise (Appeals) is not empowered to condone the delay in excess of period prescribed under Section 35 of Central Excise Act and the provisions of Limitation Act, 1963 are not applicable. He relied upon the judgments of the Supreme Court in Sakuru v. Tanaji, 1985 (22) E.L.T. 327, Prakash S. Jain v. Marie Fernandes, (2003) 8 SCC 431 and Union of India v. Popular Construction Co., (2001) 8 SCC 470. He also relied upon the judgment of Allahabad High Court in the case of E. Sefton Co. Pvt. Ltd. v. Government of India, 1993 (63) E.L.T. 626. 4.We reflected over the submissions advanced before us. 5.Section 35 of the Central Excise Act provides for and appeal to Commissioner (Appeals) against the order or decision passed by an excise authority lower in rank than the Commissioner of Central Excise. The limitation prescribed for preferring appeal under Section 35 is 60 days. The limitation commences from the date of communication of such decision or order to the aggrieved person. The Commissioner (Appeals) is empowered to condone the delay on the sufficient cause being shown by the appellant if the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court observed thus - "7. There is an important departure made by the Limitation Act, 1963 in so far as the provision contained in Section 29, sub-section (2) is concerned. Whereas under the Indian Limitation Act, 1908 Section 29, sub-section (2), clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than those contained in Sections 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of Section 5 was in clear and specific terms excluded. Section 29, sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Sections 4 to 24, which would include Section 5, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. Section 29, sub-section (2), clause (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of Section 5, while Section 29, sub-section (2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. The High Court, in the present case, did not, therefore, act without jurisdiction in holding that the application preferred by the Municipal Corporation of Delhi was not barred by the time limit of sixty days laid down in sub-section (4) of Section 417 since the Municipal Corporation of Delhi had sufficient cause for not preferring the application within such time limit. The order granting special leave was in the circumstances not an order outside the power of the High Court." 9.In Mukri Gopalan, the question that fell for determination before the Supreme Court was whether the appellate authority constituted under Section 18 of the Kerala Rent Control Act, 1965 had power to condone the delay in filing the appeal before it. Dealing with the said question, the Supreme Court observed thus- "22. As a result of the aforesaid discussion it must be held that appellate authority constituted under Section 18 of the Kerala Rent Act, 1965 functions as a court and the period of limitation prescribed therein under Section 18 governing appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bour (Appeals) may not be a "civil court" within the meaning of the Code of Civil Procedure but it is definitely a "court". 10. This appeal was dismissed on 1-9-1987 on the ground that the provisions of the Tamil Nadu Shops and Establishments Act, 1947 were not applicable to nationalised banks as held by the Madras High Court in the judgment since reported in C V. Raman. This judgment was rendered during the pendency of the appeal before the Deputy Commissioner of Labour (Appeals), Madras. 11. Sub-section (1) of Section 14, Limitation Act, provides as under : "14. (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." 12.--------- 13.--------- 14.--------- 15. Applying the above principles in the instant case, we are of the opinion that the Deputy Commissioner of Labour (Appeals), which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein under Section 90 of the Act not being a court, the Limitation Act, as such, had no applicability to the proceedings before him. But, even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority, such as the Collector, the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of Section 5 of the Limitation Act shall be applicable to such proceedings. Hence it becomes necessary to examine whether the Act contains any such provision entitling the Collector to invoke the provisions of Section 5 of the Limitation Act for condonation of the delay in the filing of the appeal. The only provision relied on by the appellant in this connection is Section 93 of the Act which, as it stood at the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be resolved with reference to the language used in Section 29(2) of the Limitation Act, 1963 and Section 34 of the 1996 Act. Section 29(2) provides that - "29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any 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. On an analysis of the section, it is clear that the provisions of Sections 4 to 24 will 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. 7. There is no dispute that the 1996 Act is a "special law" and that Section 34 provides for a period of limitation different from that prescribed under the Limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that - "Where the time for making an application to set aside the arbitral award under Section 34 has expired. the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court." This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to "proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow" (Section 17). How the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act." 14.The Division Bench of the Allahabad High Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner is not entitled to the benefits of the said provision." 15.The legal position that emerges from the various pronouncements referred to above is that the provisions of Limitation Act, 1963 apply only to 'courts'. Such courts may not be civil courts. These courts may not necessarily be constituted under the Code of Civil Procedure or the Code of Criminal Procedure. The forum that functions as a court or has trappings of the court would be a court for the purposes of applicability of the Limitation Act, 1963. The jurisdiction to entertain proceedings, appeals or revisions under the special laws is sometimes given to the ordinary courts, and sometimes given to separate tribunals constituted under the special law. Such tribunals constituted under the special law which function as courts or having trappings of courts may be treated as courts for the purposes of the Limitation Act, 1963 but not all bodies or authorities hearing appeals or revisions under special law, having no trappings of the court or which do not function as a court. 16.The Commissioner of Central Excise (Appeals) empowered to hear appeals under Section 35 of Central Excise Act, in our considered view, cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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