9911796707
TMI Blog2005 (9) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Section 5 of the Limitation Act, 1963 Shri A.P. Mathur, the learned counsel for the assessee submitted that in view of the decision of Division Bench of this Court dated 4th of June, 2004 in C.E. Reference Application No. 8 of 2004 M/s. Good Earth Steel Pvt. Ltd. v. Commissioner of Central Excise, Section 5 of the Limitation Act has no application in reference application filed under Section 35H of the Central Excise Act, 1944 and as such High Court has no power to condone the delay in filing the reference application. 4. The learned Counsel appearing in support of the application for condonation of delay contended that the aforesaid judgment of the Division Bench requires reconsideration. The said ruling given in the case of M/s. Good Earth Steel Pvt. Limited (supra) has a far reaching consequence and we are facing this problem off and on and decided to hear the matter in depth. Therefore, sufficient opportunity was given to the learned counsel for the parties to place the entire material in support of their respective contentions and the matter was heard at some length. The only issue which requires determination in this judgment is whether the provisions of Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. (2) The Commissioner of Central Excise or the other party applying to the High Court under sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred. (3) On receipt of notice that an application has been made under sub-section (1), the person against whom such application has been made, may, notwithstanding that he may not, have filed such application, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion for making a reference by a Tribunal to the High Court, at the instance of the assessee or the Commissioner. The application to the Tribunal by the assessee or the Commissioner should be made within 60 days of the date upon which he is served with the notice of an order. The proviso of Section 256(1), which reads as follows, restricts the power of Appellate Tribunal to condone the delay not exceeding 30 days :- "Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein before specified, allow it to present within a further period not exceeding 30 days." 11. Further reference was made to Section 128 of the Customs Act, 1962. The said Section gives a right of appeal to any person aggrieved by any decision or order passed under the Customs Act by an Officer of Customs lower in rank than a Collector of Customs to appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order. There is also a proviso which says that the Collector (Appeals), if he is satisfied that the appellant was prevented by sufficient cause fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court may entertain an appeal after the expiry of the said period of 30 days if it is satisfied that the appellant had sufficient cause for not preferring appeal within such period." 16. The majority judgment of the Supreme Court, in the above case while interpreting the phrase "the period of limitation prescribed by the special or local laws is different from the period prescribed therefor by the first schedule" has held as follows : "In view that a second part might be held to be independent of the first part, which should be complete and capable of operating independently. Unless these tests were satisfied, the conjunction 'and' would have to be read as importing into what follows it, the conditions of circumstances set out earlier as otherwise even the first part would be incomplete (para 9)." "Apart from the grammatical construction, there is no anomaly in Ss. 4 to 25 of the Limitation Act applying to the first part of the section and only some of them applying to the second part thereof. Those proceedings to which the first part applies, by fiction, the period prescribed in the special or local law is treated as prescribed in the first Schedule itself. There cannot poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation." 18. A controversy arose before the Supreme Court as to whether the provisions of Limitation Act, 1963 can be invoked to extend the period of limitation for filing a revision under Section 10 of the U.P. Sales Tax Act. The Supreme Court took into consideration the following factors after examining the scheme and language of Section 10 of the U.P. Sales Tax Act for coming to the conclusion that the legislature has deliberately excluded application of principle underlying the Sections 5 and 14 of the Limitation Act except to the extent as mentioned in sub-section (3B) of the Section 10 of the Sales Tax Act. It took into consideration that delay in disposal of Revenue matters adversely affects the State in flow of Revenues and Financial stability of State. Section 10 is therefore designed to ensure speedy and final determination of physical matters within a reasonably certain time schedule". 19. It has also taken into account that the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Limitation prescribed for any suit, appeal or application by any special law or local law the application of Section 5 of the Limitation Act was specifically and in clear terms excluded. Under Section 29(2) of the present Limitation Act, 1963, Section 5 applies in case of special or local law to the extent to which it is not expressly excluded by special or local law. It has been further held that even in the case, where the special law does not exclude the provisions of Section 4 to 24 of the Limitation Act by an expressed reference, it would nonetheless be open to the court to examine whether or and to what extent the nature of those provisions or the nature of the subject matter of scheme of special law exclude their operation. 25. The Supreme Court in the case of Gopal Sardar, has considered its earlier judgment given in the case of CST v. Parson Tools & Plants (supra), Hukum Dev Narain Yadav v. Lalit Narain and other judgments. It has noted the departure made in Section 29(2) of the Limitation Act in comparison to old Limitation Act, 1908. The relevant paragraph is reproduced below : "An important departure is made in Section 29 sub-section (2) of the Limitation Act of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the scheme of the Act and having regard to various provisions such express exclusion could be gathered. Thus, a conscious and intentional omission by the legislature to apply Section 5 of the Limitation Act to the proceedings under Section 8 of the Act, looking to the scheme of the Act, nature of right of pre-emption and express application of Section 5 of the Limitation Act to the other provisions under the Act, itself means and amounts to "express exclusion" of it satisfying the requirement of Section 29(2) of the Limitation Act." 27. It has come to the conclusion that its judgment given in the case of Mukri Gopalan v. Cheppilat, (1995) 5 SCC 5 cannot be applied in support of the submission that Section 5 of the Limitation Act is applicable to a proceeding under a special Act, with the observation that in 'any case' the case of Mukri Gopalan was decided by two learned judges of the Court. 28. Recently the Supreme Court in the case of L.S. Synthetic Ltd. v. Fair Growth Financial Services Limited, Judgment Today 2004 (7) SC 254 has considered the question as regards to the applicability of Limitation Act to the proceedings under the Special Courts (Trial and Offences Relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore not called upon to decide whether claims either preferred for the first time before the Special Court or transferred to the Special Court under Section 9A(2) would attract the provisions of Sections 4 to 24 of the Limitation Act. It is enough for the purpose of this appeal to hold that Section 29(2) of the Limitation Act, 1963 does not apply to proceedings under Section 4(2) of the Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992. Since the appellants petition of objection had been filed much beyond the period prescribed under that Section, the Special Court was right in rejecting the petition in limine. The appeal is accordingly dismissed but without any order as to costs." 30. In this case the Supreme Court has considered its various earlier judgments including that too given in the case of Vidya Charan Shukla and Hukum Dev Narain (supra) and also in the case of Gopal Sardar v. Karuna Sardar, (2004) 4 SCC 252. This case is an authority for the proposition that a departure has been made in Section 29(2) of the Limitation Act of 1963 from Indian Limitation Act, 1908. Under the Indian Limitation Act, 1908 Section 29(2)(b) provides for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct were made applicable by express provision in filing the appeal and revision that Section 14H and Section 19 of the Act. Further, it is clear that there was no specific exclusion of the Limitation Act in Section 8 of that Act which provides the filing of application in the nature of a suit for enforcement of right of preemption by a purchaser. But even then the Supreme Court held that the provisions of the Limitation Act stands excluded so far as the delay in filing of the application under Section 8 of the aforesaid Act is concerned. 32. In the light of the above discussion it is necessary for us to have a look at the relevant provisions of Central Excise Act as amended by Finance Act, 1999. It cannot be doubted that the Central Excise Act, 1944 is a Special Act and is a self contained Act. 33. Section 35 of the Act provides filing of appeal before the Commissioner (Appeals). Section 35(1) is quoted below : "Section 35. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals) herea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. There is no doubt that the Act, 1944 is a self contained Act and it has provided different periods of limitation for filing appeals etc. under its various sections. So far as the appeal before the Commissioner (Appeals) is concerned, it has given a limited power to the Commissioner (Appeals) to condone the delay. But there is no such restriction while making the provisions of Section 5 of the Limitation Act applicable so far as it relates to the filing of appeal and cross appeals before the Tribunal is concerned. 37. Upshot of the above discussion is that the view taken by the learned judges in the case of M/s. Good Earth Steel Pvt. Limited in accordance with the various pronouncements of the Supreme Court on the subject and we are in respectful agreement with them. It is not open for us to disagree with the view of the Learned Judges on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier, as held by the Supreme Court in the case of State of Bihar v. Kalika Kuer @ Kalika Singh, AIR 2003 SC 2443. 38. In the result we are of the opinion that the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
