2008 (8) TMI 149 - HC - Central Excise

Appeals under Section 35G of Central Excise Act dismissed for delay; High Court lacks jurisdiction to condone.

COMMISSIONER OF CENTRAL EXCISE PUNE-II Versus SHRUTI COLORANTS LTD.

The High Court dismissed the Notices of Motion for condonation of delay in filing appeals under Section 35G of the Central Excise Act, 1944. The court ... Power of HC for condonation of delay - Once the provisions of section 5 of Limitation Act, 1963 are not attracted, Appeals filed u/s 35G of the CEA, 1944 beyond the prescribed period of limitation in terms of Section 35G(2)(a) would be barred by time and this Court would have no jurisdiction to condone the delay and entertain the appeal filed after the said period of limitation – expression “shall” used in sub-section (1) of section 35G, cannot be read as “may” - revenue’s appeal dismissed Issues Involved:1. Condonation of delay in filing appeals under Section 35G of the Central Excise Act, 1944.2. Jurisdiction of the High Court to condone delay under Section 35G.3. Applicability of Section 5 of the Limitation Act to appeals under Section 35G of the Central Excise Act.Issue 1: Condonation of Delay in Filing Appeals under Section 35G of the Central Excise Act, 1944The appeals in question were filed by the Commissioner of Central Excise, Pune, and were barred by time, with delays ranging from 3 to 79 days. The appellant sought condonation of these delays. However, the High Court emphasized that the primary issue was whether the court had the jurisdiction to condone the delay under the provisions of the Central Excise Act, 1944. The court noted that the sufficiency of the cause for delay was secondary to the jurisdictional question.Issue 2: Jurisdiction of the High Court to Condon Delay under Section 35GThe court analyzed Section 35G of the Central Excise Act, which governs appeals to the High Court. Section 35G(2)(a) mandates that appeals must be filed within 180 days from the date of receipt of the order appealed against. The court highlighted that there is no provision within Section 35G that allows the High Court to condone delays beyond this period. The court referred to the principle that where the language of a statute is clear and unambiguous, it must be given effect as it stands. The court concluded that Section 35G does not confer any power on the High Court to condone delays beyond the specified 180 days.Issue 3: Applicability of Section 5 of the Limitation Act to Appeals under Section 35G of the Central Excise ActThe court examined whether Section 5 of the Limitation Act, which allows for the condonation of delays, could be applied to appeals under Section 35G of the Central Excise Act. The court noted that the Central Excise Act is a special statute and that special statutes can exclude the application of the Limitation Act either expressly or by necessary implication. The court cited several precedents, including the Supreme Court's decision in Commissioner of Customs & Central Excise, Mumbai v. Punjab Fibres Ltd., which held that there was no provision under the special statute for condonation of delay and thus, the High Court had no power to condone the delay in making an application for reference. The court concluded that the provisions of Section 5 of the Limitation Act do not apply to appeals under Section 35G of the Central Excise Act, as the latter is a self-contained code that explicitly prescribes the limitation period without providing for condonation of delay.Conclusion:The High Court dismissed the Notices of Motion for condonation of delay and consequently, the Central Excise Appeals did not survive for consideration. The court held that appeals filed under Section 35G of the Central Excise Act, 1944, beyond the prescribed period of 180 days are barred by time, and the High Court has no jurisdiction to condone such delays. The court emphasized the strict interpretation of statutory provisions governing limitation periods in special statutes and the exclusion of the general provisions of the Limitation Act in such contexts.