TMI Blog2011 (2) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... he delay itself would be around 8˝ months. Therefore, seen from both the angles, we do not see any justification to entertain this appeal - Appeal is dismissed - 34 of 2010 - - - Dated:- 11-2-2011 - N. Kumar and Ravi Malimath, JJ. REPRESENTED BY : Shri Y. Hariprasad, Advocate, for the Appellant. Shri Harish and Company, Advocates, for the Respondent. [Order per : N. Kumar, J.]. The revenue has preferred, this appeal challenging the order passed by the Tribunal [2010 (251) E.L.T. 459 (Tri.-Bang.)] which dismissed the application filed by the Revenue under the provisions of Section 35C (2) of the Central Excise Act, 1944 seeking condonation of delay in filing the application for rectification of the mistake on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication was opposed contending that there is no provision in the Act for the Tribunal to condone the delay. On the contrary, the revenue contended that the Tribunal has inherent power to condone the delay. After hearing both the parties and also referring to the judgment of the Apex Court in the case of M/s. Sunita Devi Singhania Hospital Trust v. Union of India reported in 2008-TIOL-235-SC-CUS. = 2009 (233) E.L.T. 295 (S.C.). The Tribunal held that the said judgment of the Apex Court has no application to. the facts of this case and the provisions of Section 35C(2) of the Act did not empower the Tribunal to condone the delay in filing the application for rectification of the mistake filed belatedly and thus the application for condonatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter referring to the earlier judgments of the Court held as under :- Through, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this Section are expressly excluded in the case of reference to High Court. It was contended before us that the words expressly excluded would mean that 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. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein, are such that the legislature intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intent whereby legislature did not expressly or impliedly state that either Section 5 of the Limitation Act is applicable or the delay in passing an order on an application for rectification could be condoned, it is not possible to hold, that the Tribunal committed any irregularity in rejecting the application for rectification on the ground that it is barred by time. In the instant case, after the order of the Tribunal is passed, the revenue has refunded the money to the assessee. Even at this stage they did not apply their mind. It is only on rejection of the duty paid by the assessee and nearly after 14 months the application for rectification is made. The delay itself would be around 8 months. Therefore, seen from both the angles, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
