TaxTMI 
TaxTMI 
2015 (6) TMI 498
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Reconstruction and others, decided on 25.11.2008 (2009 (22) VST 2010) to contend that in a similar factual matrix where the issue was of the BIFR to decide the jurisdiction to waive off the interest on sales tax, it was deemed appropriate to examine the merits of the controversy by seeking to condone the delay. On the other hand, learned counsel for the respondents has referred to certain issues expressed by the Delhi High Court, Madras High Court as well as the Hon'ble Supreme Court of India. In the context of the same enactment in Writ Petition (Civil) No.2728 of 2012 titled as M/s Agarpara Jute Mills Limited v. Board for Industrial and Financial Reconstruction and others, decided on 8.5.2012, it was held that there could not be any condonation of delay relying upon the judgment of the Supreme court in Union of India v. Popular Construction Company, (2001) 8 SCC 470. The Special Leave Petition against this judgment bearing No.18296 of 2012 was dismissed on 30.11.2012. Reference has also been made to the judgments of the Supreme Court in Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission and others decided on 15.4.2010, 2010(5) SCC 23 where in th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ax Act, 1956 (CST Act). Ever since its registration, it has been doing its business regularly returning substantial gross turnover every financial year. The company had been affected by the liberalization process and became a sick industrial company within the definition of Section 3(1)(o) of the Sick Industrial Company's (Special provisions) Act, 1985 (in short, "the SICA") from the very first year of its operation i.e. 2000-01 as its accumulated losses exceeded its networth. Based on its audited balance sheet as on 31.3.2005, the company filed a reference under the SICA vide Form No.A dated 22.5.2005 before the Board of Industrial and Financial Reconstruction, New Delhi (BIFR). Respondent No.4 vide its order dated 2.12.2006 declared the company a sick unit and appointed UCO Bank as an operating agency to prepare rehabilitation Scheme for the company. The cut off date was fixed as 31.3.2007. Thereafter, a joint meeting of all the parties was convened. However, no notice was issued to the appellant State. Subsequently on 17.3.2008, a revival scheme was submitted by the UCO Bank operating agency. The BIFR formulated the draft rehabilitation scheme for revival of the company and invi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e summarized as under:- (a) Whether under Section 25 of SICA, the delay in filing the appeal to AAIFR can be condoned beyond the period of 60 days. In other words, the provisions of Section 5 of the 1963 Act would be applicable or not? (b) If the answer to the above is in the negative, whether the High Court is empowered under Articles 226/227 of the Constitution of India to condone the delay or not? 5. Examining the first issue, Sections 5 and 29(2) of 1963 Act would be germane for the purpose of deciding the controversy which provide as follows:- "5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) , may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meanin....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... specific provision but it is to be gathered from the substance of the language mentioned in the statute whether the effect thereof is nothing but exclusionary. The Supreme Court in Union of India v. Popular Construction Company, AIR 2001 SC 4010 while analyzing Section 29(2) of the 1963 Act in view of its earlier decision in Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 had observed as under:- "Apart from the language, 'express exclusion' may follow from the scheme and object of the special or local law. "Even in a case where the 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 the nature of the subject-matter and scheme of the special law excluded their operation." 8. The SICA is a special statute. Under Section 25(1) of SICA, remedy of appeal has been provided as under:- "25. (1) Any person aggrieved by an order of the Board made under this Act may, within forty-five days from the date on which a copy of the order is issued to him, prefer an appeal to the Appellate Autho....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be further extended on sufficient cause being shown by another period of 15 days but not thereafter. The scheme of SICA supports the conclusion that the time limit prescribed under Section 25 to file an appeal is absolute and unextendable by court under Section 5 of the 1963 Act. It is trite law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the 1963 Act. In our view, the provisions of Section 5 of the 1963 Act would not be applicable as the applicability of Section 5 of the 1963 Act stands excluded because of the provisions of Section 29(2) of the 1963 Act as there is definite indication that Section 5 of the 1963 Act for condonation of delay beyond particular period cannot be invoked. 11. The stage is now set for adverting to precedent and, there appears to be no dearth thereof. The Supreme Court in Popular Construction Company's case (supra) was adjudicating the issue regarding applicability of Section 5 of 1963 Act for condonation of delay in filing an application under Section 34(3) of the Arbitration and Conciliation Act, 1996. After refer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 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." Similar view was reiterated in Commissioner of Customs, Central Excise Vs. Punjab Fibres Limited, (2008) 3 SCC 73. 12. In Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and others, (2008) 7 SCC 169, a three- Judge Bench again considering Section 34(3) of the Arbitration and Conciliation Act, 1996 after referring to the relevant provisions observed as under: "....When any special statute prescribes certain period of limitation as well as provision for extension up to specified timelimit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting subsection (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another perio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estion whether Section 5 of the 1963 Act can be invoked for condonation of delay in filing an appeal or reference to the High Court, in view of its judgments in Popular Construction Co. and Singh Enterprises's cases (supra) recorded as under: - "As pointed out earlier, the language used in Sections 35, 35- B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days." 15. In Chhattisgarh State Electricity Board v. Central Electricity Regulatory Comm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law." The Court then referred to some of the precedents and held: "In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract the applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory." Supreme Court has expressed similar view in relation to provisions of Section 35 of the Foreign Exchange Management Act, 1999 in Ketan vs. Parekh in Civil Appeal No.10301 of 2011, decided on 29.11.2011. 16. A Division Bench of Delhi High Court in M/s Agarpara Jute Mills Limited vs. Board for Industrial and Financial R....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. 12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to sub-section (3). In or opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. 13. Apart from the language, 'express exclusion' may follow from the scheme and object of the special or local law. "Even in a case, where the 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 extend the nature of those provisions or the natur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he High Court were to be accepted as a valid basis for exercise of its judicial discretion to entertain the writ petition in its extra ordinary jurisdiction under Article 226 of the Constitution, then the provisions for appeal against the order passed by the designated authority in respect of anti dumping issues would be rendered otiose and a person aggrieved by the final finding of the designated authority could, despite the express provision of Section 9(C) of the Customs Tariff Act, invoke the writ jurisdiction with impunity." 21. Kerala High Court in Thomas and another vs. The Kottayam Municipality and another, 2008(3) Ker. L.J.482 considering identical issue had opined as under:- "8. The judgment in Asst. Commissioner of Central Excise V. Krishna Poduval (2005(4)KLT 947), was a case arising under the Central Excise Act. The statute prescribed the period of limitation and also restricted the power of the appellate authority to condone the delay. As in this case, an appeal was filed belatedly and since the delay sought to be condoned was beyond the permissible period, delay was declined to be condoned and consequently the appeal was rejected. The order was challenged befor....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... concerned under the Tamilnadu General Sales Tax Act, 1959, its jurisdiction and power to condone delay is limited to a period of 30 days, that limitation cannot be made applicable to the High Court while exercising jurisdiction under Art.226 of the Constitution of India." With great respect, we are unable to persuade ourselves to agree with the said decision which does not WP(c).No.244656/2008 9 also contain any reasoning for holding so. According to us, all the remedies of the respondents have come to an end when their appeals were dismissed by the commissioner of Central Excise (Appeals) on the ground of limitation. Even the further appellate authority or this court does not have the jurisdiction to entertain the claim on merits disregarding the limitation or condoning the delay. In any event, the appellants have not pleaded any extraordinary circumstances warranting interference, even if we had the jurisdiction to do so." 10. This judgment of the Division Bench has been followed by the Division Bench in the case of Krishnan .T and another V. State of Kerala and Ors. (ILR 2007(1) Kerala 233), wherein para 7, it has been held as follows. "Counsel for the appellant however, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in another decision rendered on the same day in M.Unnikrishnan vs. Deputy Commissioner of Labour (Appeal) (supra). 23. The support is also drawn from the following observations of the Apex Court in Union of India and another vs. Kirloskar Pneumatic Company Limited, 1996(4) SCC 453:- "Yet the question is whether it is permissible for the High Court to direct the Authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 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." 24. Division Bench of Bombay High Court in M/s Raj Chemicals vs. Union of India, 2013(287) ELT 145 has expressed as under:- "The Central Excise Act, 1944 is a special Act governing the levy, collection and recovery of Central Excise duty on goods manufactured or produced in India. In sub section (1) of section 35, the Legislature has mandated that an appeal before the Commissioner of Appeals....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry to the express provision of law. Equally, it would also not be appropriate to exercise extraordinary jurisdiction under Articles 226/227 of the Constitution by the High Court to condone the delay beyond the maximum period prescribed by law and direct the appellate authority to hear the appeal on merits. Thus, Section 5 of the 1963 Act cannot be pressed into service in aid of a belated application under Section 25(1) of the SICA seeking condonation of delay beyond the period prescribed thereunder. 26. Having crystallized the legal position, it would be just and fair to learned counsel for the appellant State to discuss the case law referred by her. 27. Heavy reliance was placed upon Constitution bench decision in L.Chandra Kumar vs. Union of India, AIR 1997 SC 1125. A careful reading of the decision shows that the Apex Court therein was considering the constitutional validity of sub clause (d) of clause (2) of Article 323A and sub clause (d) of clause (3) of Article 323B of the Constitution whereby power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution was deliberated. It was concluded that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....letter dated March 31, 2003, it was pointed out that the matter was to be considered by the Steering committee. The Steering Committee vide order dated August 31, 2003 concluded that the relief contemplated in the scheme was not permissible and this decision was conveyed to the BIFR. The BIFR gave further directions and proceedings for implementation of the scheme dated 5.7.2001 continued. On October 26, 2006, BIFR noticed that there was conflict between paras 4.5(ii) and 4.5(iii) of the scheme. An appeal was filed before the appellate authority which was dismissed on 12.2.2008. The appellate authority set aside observations in the order dated 26.10.2006. A writ petition was filed by the State challenging the order dated 5.7.2001 passed by BIFR and order dated 12.2.2008 passed by appellate authority against order dated October 26, 2006. However, order of the appellate authority dated 18.9.2006 (wherein order dated 5.7.2001 was impugned) dismissing the appeal of the State as time barred and for non prosecution was never assailed in the writ petition. In the peculiar facts of that case and taking note of conduct of respondent No.3 therein, the Division bench had exercised jurisdictio....