2019 (9) TMI 13

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.... 3. This writ petition has been filed with a prayer to mandamus 'Tamil Nadu Sales Tax Appellate Tribunal' ('TNSTAT' for brevity) to entertain an appeal which is proposed to be filed by writ petitioner, challenging an order of assessment passed by the second respondent. The prayer also states with specificity that it seeks to mandamus TNSTAT to entertain the appeal without rejecting the same on the ground of limitation. 4. In the instant case, it may not be necessary to advert to the trajectory thus far in the light of the nature of the prayer before this Court. 5. It is submitted without any disputation or disagreement that appeal to TNSTAT is now under Section 58 of 'Tamil Nadu Value Added Tax Act, 2006, (Tamil Nadu A....

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...., the order of the Hon'ble Single Judge referred to by the writ petitioner cannot be looked into. 6. Be that as it may, relevant portion of the order of Hon'ble Division Bench is contained in Paragraphs 4, 5 and 6, which read as follows: '4. In a decision in M/s.Falcon Types Ltd., v. The Customs, Excise & Service Tax Appellate Tribunal, Chennai [C.M.A.No.1161 of 2016, dated 15.06.2016], a Hon'ble Division Bench of this Court, following the decisions in Indian Coffee Worker's Co-op. Society Ltd., v. Commissioner of Commercial Taxes reported in 2002 (I) CTC 406, Singh Enterprises v. Commissioner of Central Excise, Jamshedpur reported in 2008 (221) E.L.T. 163 (SC), Commissioner of Customs & Central Excise v. Hongo India....

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.... TNVAT Act is 30 + 30 = 60days as there is a cap qua delay condonation period. 10. Having extracted the relevant provision, this Court now adverts to two judgments of Hon'ble Supreme Court, which were pressed into service by learned Revenue counsel. The first is a case law being Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others, reported in (2008) 3 SCC 70. Most relevant paragraph is paragraph 8 and the same reads as follows: 'The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statu....

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..... The other case law referred to by learned Revenue counsel is Commissioner of Customs and Central Excise Vs. Hongo India Private Limited and another, reported in (2009) 5 SCC 791. 12. To be noted, Hongo India Private Limited had been rendered by the Larger Bench i.e., by a three member Bench of Hon'ble Supreme Court of India. 13. Hongo India Private Limited turns on Section 35H of Central Excise Act. 14. Section 35H of the Central Excise Act provides for a reference to the High Court within 180 days from the date of the order of the Appellate Tribunal. 15. Considering the importance and significance, this Court deems it appropriate to extract 35H of Central Excise Act, which reads as follows: '35H Application to High Cour....

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....e court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act.' 17. To be noted, in Section 35-H, there is no provision for condonation of delay at all. Even in such cases i.e., cases where there is neither provision for delay condonation nor cap, the Hon'ble Supreme Court has held that the period of limitation prescribed is absolute and cannot extended. Be that as it may, in Singh Enterprises case, Hon'ble Supreme Court dealt with a case, where there is a provision of condonation of delay, but subject to a cap of 30 days. Dealing with this cap [paragraph 8, which has been extracted and reproduced supra], Hon'ble S....