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TMI Blog2005 (10) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... f the adjudication proceeding, which culminated in orders in Original dated 20-1-2002 and dated 28-3-2003, served on the petitioner on 2-1-2003 and 31-3-2003 respectively. 4. The petitioner, for the reasons stated in the petition, details of which are not necessary, could not file appeals against the aforesaid orders before the Commissioner of Central Appeals (Appeals) (the Appellate Authority) within a stipulated period of 30 days. The delayed appeals were filed. In one of the appeals, there was a delay of about 202 days; whereas in another appeal, there was delay of about 194 days. The Appellate Authority not being empowered to condone delay beyond the period of 30 days, excluding the period prescribed for filing appeal, refused to condone delay vide its order dated 30th January, 2004. 5. Not being satisfied with the aforesaid order refusing to condone delay, petitioner carried revision application to the Government of India and the said revision application also came to be rejected with the result revisional authority upheld the order of the Appellate Authority refusing to condone delay beyond the period of 30 days. 6. Being aggrieved by the aforesaid order of the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay should be condoned and appeal should be remitted back to the first Appellate Authority for consideration on merits. He placed reliance on the judgment of the Supreme Court in the case of Union of India v. Kirloskar Pneumatic Company - 1996 (84) E.L.T. 401 (S.C.). 10. On the other hand, Shri Rana, learned senior Counsel appearing for the Revenue, opposed the contentions of the petitioner. He submits that there is no power to condone delay with the first Appellate Authority beyond the prescribed. He submits, there is no justification in reading powers in favour of the authorities under the Act. He further submits that there is no justification in indirectly seeking application of provisions of the Limitation Act to such power of condonation of delay. The issue : 11. The issue that falls for consideration is whether the authorities discharging duties under the Act has power to condone delay beyond the period of limitation prescribed under the Act and, whether provisions of the Limitation Act would apply to the proceedings under the provisions of the Central Excise Act. Statutory provision : 12. Before proceeding to consider the issue, it would be appropriate to refer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essly excluded the operation of section 5 of the Limitation Act. The Apex Court after considering the scope of section 29(2) and the applicability of the provisions contained in sections 4 to 24 of the Limitation Act, and after reviewing the case law, concluded that the history and scheme of 1996 Act supports the conclusion that the time-limit prescribed under section 34 to challenge the award is absolute and unextendable by the court under section 5 of the Limitation Act. The Court after referring to the Arbitration and Conciliation Bill, 1995, which preceded the 1996 Act, noted that one of its main objectives was the need to minimise the supervisory role of courts in the arbitral process. The Apex Court also referred to the term "expression exclusion"which may follow from the scheme and object of the special or local law by referring to the following observations in the case of Hukumdev Yadav v. Lalit Narain Mishra - (1974) 2 SCC 133. Even in a case where special law does not exclude the provisions of sections 4 to 24 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unworkability of frustrating the object of the Act. At any rate, in the light of three-Judge Bench decision of this Court in Hukumdev Narain Yadav case (1974) 2 SCC 133 and subsequently followed in Anwari Basavaraj Patil case (1993) 1 SCC 636 even though special or local law does not state in so many words expressly that section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the Scheme of the Act and having regard to various provisions such express exclusion could be gathered." 16. In the case of Kirloskar Penumatic Company (cited supra), the Apex Court was considering the scope of jurisdiction under Articles 226 and 227 of the Constitution of India. The Apex Court ruled that the power conferred by Articles 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to section 27, whether before or after amendment. May be the High Court or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t necessarily be constituted under Code of Civil Procedure or Code of Criminal Procedure. The forum that functions as Court or has trapping of Courts would be a Court for the purposes of its applicability. This judgment further lays down that the Commissioner of Central Excise has no jurisdiction to condone delay beyond 60 days in filing appeal. If that be so, the condonation of delay was rightly refused by the first appellate authority for want of powers to condone. 20. It is needless to mention that if the order passed by the appellate authority under the Central Excise Act cannot be faulted, then the impugned order cannot be set aside. Maintaining impugned order powers under Article 226 cannot be invoked for condoning delay, simply because it would give rise to two inconsistent orders in the same proceedings which is not permissible in law (see Dwarkaprasad v. Harikant Prasad, AIR 1973 SC 655; Mahadev Maruti v. Shri Ganapati, AIR 173 Bom. 119, and Amba Bai v. Gopa - 2001 AIR SCW 1996. Even otherwise, in our opinion, this is not a fit case to condone delay in exercise of powers under Article 226 of the Constitution of India. 21. Learned Counsel appearing for the petitioner al ..... 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