TaxTMI 
TaxTMI 
2004 (4) TMI 93
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....were classifiable under heading 2106.00 and that the petitioner was liable to pay duty for the period up to 28-2-2001. The petitioner filed a reply to the said show cause notice and after considering such reply, the Deputy Commissioner of Central Excise passed an Order-in-Original No. 61/2002, dated 17-5-2002 confirming the duty demanded. 2. This is background leading to the main issue involved in this writ petition. The issue arises in respect of the appeal filed by the petitioner against the said Order-in-Original dated 17-5-2002 which was filed on 28-7-2002. Section 35 of the Central Excise Act, 1944 (hereinafter referred to as "the said Act") provides for appeals to the Commissioner (Appeals) and reads as under : "35. Appeals to Commissioner (Appeals). (1) Any person aggrieved by any decision or order passed under this Act by a(1) Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) "within sixty days" from the date of the communication to him of such decision or order : Provided that the Commissione....
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....o v. C.C. Mumbai, 2003 (160) E.L.T. 695 (T) = 2003 (56) RLT 405, the Tribunal rejected the appeal of the petitioner. 5. It is the contention of the petitioner that the Commissioner (Appeals) had the power to condone delay even beyond the period of thirty (30) days permitted by the proviso to Section 35(1) of the said Act. This submission is made on the premise that the delay could be condoned under Section 5 of the Limitation Act, 1963, read with Section 29(2) thereof. To appreciate this submission it would be necessary to refer to the said provisions. Section 29(2) of the Limitation Act, 1963 reads as under: (2) Where any special or local law" prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive, shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law....
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....ex v. Commissioner Customs, CUS AC No. 9/2003 which was decided by a Division Bench of this Court on 13-2-2004 [2004 (173) E.L.T. 449 (Del.)]. In the said case, the parallel provision of Section 128 of the Customs Act, 1962 came up for consideration. Several decisions of the Supreme Court were discussed. Those included Collector of C.E., Chandigarh v. Doaba Cooperative Sugar Miles, 1988 (37) E.L.T. 478 (S.C.); Miles India Limited v. Assistant Collector of Customs; 1987 (30) E.L.T. 641 (S.C.); Mohd. Ashfaq v. State Transport Appellate Tribunal, AIR 1976 SC 2161; Commissioner of Sales Tax v. Parson Tools & Plant, 35 STC 413; Smt. Ujjam Bai v. State of U.P., 1963 (1) SCR 778; Jagannath Prasad v. State of U.P., 1963 (2) SCR 850. Apart from holding that "taxing authorities are not "courts" and, therefore, Section 5 of the Limitation Act, 1963 cannot be invoked", this Court, in Delta Impex (supra), specifically held in paragraphs 12, 13 & 14 thereof as under : "12. The Customs Act, 1962 itself is a complete Code. Reading various chapters and various sections thereof, it is very clear that it is an Act independent of other provisions. It provides for search, seizure, arrest, conf....
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....mum time limit is specified or a condonable period is prescribed, then only the delay within the specified time of condonation which can be condoned, and no further". Thus, we see that the issues which arise for consideration in the present writ petition are squarely covered by the decision of this Court in the case of Delta Impex (supra). However, the learned Counsel for the petitioner, when presented with the views taken by us in the case of Delta Impex (supra), contended that we ought to keep in mind the decisions of Supreme Court in the following cases: (i) Lalji Haridas v. State of Maharashtra and Anr, 1964 (6) SCR 700; (ii) Commissioner of Sales Tax, U.P. v. Madan Lal Das and Sons, (1976) 4 SCC 464; (iii) Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133; (iv) Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5; and (v) Union of India v. Popular Construction Company, (2001) 8 SCC 470. 9. Let us consider these cases one by one. In the case of Lalji Haridas (supra), the question which essentially came up for consideration was whether an Income-Tax Officer under the Income Tax Act, 1922 was a "Court" wi....
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..... The High Court was earlier not relying upon the provisions of the Section 12(2) of the Limitation Act. This contention was rejected by the Supreme Court. After quoting Section 29(2) of the Limitation Act, the Supreme Court held as under:- "4. There can be no matter of doubt that the U.P. Sales Tax Act answers to the description of a special or local law. According to sub-section (2) of Section 29 of the Limitation Act, reproduced above, for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in Section 12(2), inter alia, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. There is nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2) of the Limitation Act for determining the period of limitation prescribed for revision application. The conclusion would, therefore, follow that the provisions of Section 12(2) of the Limitation Act of 1963 can be relied upon in computing the period of limitation prescribed for filing a revision petition (underlining under Section 10 of the U.P. Sales Tax Act." Th....
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....at there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case whether 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. The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application mad....
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....s, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit of application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act." (underlining added) We fail to see how this decision of the Supreme Court advances the cause of the petitioner. On the contrary, it entirely supports the view we have taken. On an examination of the provisions of Section 35 of the said Act, it is clear that the provisions of the Limitation Act are necessarily excluded, at least beyond the said thirty (30) day period. As such the benefits conferred in the Limitation Act, 1963 cannot be called in aid to supplement the provisions of the said Act. The Supreme Court has made it clear that 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 ex....
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.... a result of the aforesaid discussion it must be held that appellate authority constituted under Section 18 of the Kerala Rent Act, 1965 functions as a Court and the period of limitation prescribed therein under Section 18 governing appeals by aggrieved parties will be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963. Such proceedings will attract Section 29(2) of the Limitation Act and consequently Section 5 of the Limitation Act would also be applicable to such proceedings. Appellate authority will have ample jurisdiction to consider the question whether delay in filing such appeals could be condoned on sufficient cause being made out by the applicant concerned for the delay in filing such appeals." In so coming to the conclusion, the Supreme Court, with regard to the provisions of Section 29(2) of the Limitation Act, observed as under: "A mere look at the aforesaid provision shows for its applicability to the facts of a given case and for importing the machinery of the provisions containing Sections 4 to 24 of the Limitation Act the following two requirements have to be satisfied by the authority invoking the said provision. ....
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....equently it could not be held to be an authority for the proposition that in a revisional proceedings before the Sales Tax authority functioning under the U.P. Sales Tax Act, Section 29(2) could not apply. Explaining the decision in Parsons Tools case (supra), the Supreme Court in the case of Mukri Gopalan (supra), held that the said decision (Parson Tools) was rendered because there was an express provision under Section 10(3) B of the U.P. Sales Tax Act which provided that a revision application had to be made within one year from the date of service of order but that the revising authority could, on proof of sufficient cause, entertain an application within a further period of six months. In view of this provision, it was held that this was an express bar to the applicability of Section 14(2) of the Limitation Act. As regards the decision of the Supreme Court in CST v. Madan Lal Das & Sons (supra), the Court observed that it was a direct decision on the point that Section 29(2) of the Limitation Act, 1963 would be applicable for computing periods of limitation prescribed by a local or special law, even though the authority before which such proceeding may be filed under the loca....
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....revented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. xxxx xxxx xxxx"xxxxxxxx (underlining added) Analysing the aforesaid provision and in particular the proviso thereto, the Supreme Court, on the strength of its decision in Mangu Ram v. Municipal Corpn. of Delhi, (1976) 1 SCC 392 (at page 396), observed that - "8. Had the proviso to Section 34 merely provided for a period within which the Court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because 'mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5." With regard to the words "but not thereafter" used in the proviso, the Supreme Court held that these amounted to an express exclusion within the meaning of Section 29(2) of the Limitation Act and was, therefore, a complete bar to the application of Section 5 of the Limitation Act. In this context, the Court observed as under: "Parliament did....
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....ection 417 which left no scope for doubt or ambiguity, the High Court was statutorily obliged to reject an application for special leave made after the expiry of sixty days from the date of the order of acquittal and it had no jurisdiction to extend this time limit of sixty days by resort to Section 5 of the Limitation Act, 1963. The Supreme Court after distinguishing its earlier decision in the case of Kaushalya Rani v. Gopal Singh, (1964) 4 SCR 982 on the ground that the decision pertained to the Limitation Act, 1908 which was different from the Limitation Act, 1963, held that - "... the time limit of sixty days laid down in sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribi....
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....also stipulates that such appeal which is beyond time can only be presented within a further period of thirty days and not thereafter. By prescribing the maximum period during which an appeal may be presented beyond the limitation prescribed, the legislative intent is clear that the "open-ended" provision of Section 5 of the Limitation Act, 1963 was not to apply. To this extent, there is an express exclusion of the provisions of Section 5 of the Limitation Act, 1963. 16. We are further supported by the view taken by the Supreme Court in its recent decision in the case of India House v. Kishan N. Lahwani, (2003) 9 SCC 393 wherein similar provisions of Section 25 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 came to be considered. Sub-section 25(2) of the said Tamil Nadu Act provides that every application to the High Court for the exercise of its revisional power shall be preferred within one month from he date on which the impugned order is communicated to the applicant: "provided that the High Court may, in its discretion, allow further time not exceeding one month for the filing of any such application, if it is satisfied that the applicant had sufficie....