TMI Blog2014 (11) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... red by time - Condonation denied. - CEA No.11/2013 - - - Dated:- 5-11-2014 - P K Jaiswal D K Paliwal, JJ. For the Appellant : Shri A S Kutumbale, Senior Counsel with Shri Ashutosh Upadhyaya Shri Sudarshan Joshi, Advs. For the Respondent : Shri Prasanna Prasad, Counsel JUDGEMENT Heard on I.A. No.2687/2013, an application for condonation of delay filed under Section 5 of the Indian Limitation Act, 1963. 2. The Central Excise Appeal which is filed under Sub-Section (2) of Section-G of Central Excise Act, 1944 is barred by 5 years and 113 days. 3. The appellant is challenging the orders dated 28/09/2006 and 29/06/2007. 4. Section 35-G(2) (A) of Central Excise Act, 1944 reads as under:- (2A) The High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction (BIFR) vide its order dated 22.12.2005 directed change of management of the appellant Company. A copy of order dated 22.12.2005 is enclosed. Against the above order appellant filed an appeal before AIFR and AIFR granted stay of order dated 22.12.2005 vide order dated 03.01.2006. During pendency of above appeal, appellant settled the dues of the secured creditors. Thereafter the AIFR vide order dated 04.03.2011 remanded the case to BIFR. A copy of the order dated 04.03.2011 is enclosed herewith. Thereafter, BIFR vide order dated 14.01.2013 directed the appellant to submit MDRS to MPFC. A copy of the order dated 14.01.2013 is enclosed herewith. 3. That upon the sincere efforts of the Management, the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Senior Counsel for the appellants also placed reliance on the decision of the Apex Court in the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai. reported in (2012) 5 SCC 157 and B. Madhuri Goud vs. B. Damodar Reddy reported in (2012) 12 SCC 693 and submitted that delay of 5 years and 113 days be condoned. 7. On the other hand, learned counsel for the respondents submits that provisions of Section 5 of the Indian Limitation Act, 1963 will not be applicable. He submitted that as per amended provision of Section 35-G(2) (A) of Central Excise Act, 1944, the period as specified under the aforesaid provision can only be condoned. 8. In the present case, delay is more than 5 years and 113 days and in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. 9. It is submitted that the Central Excise Act, 1944 is a special Act. Applicability of the Limitation Act is to be judged from the terms of the special law. 10. The Apex Court in the case of Commissioner of Central Excise (supra) has held that High Court has no power to condone the delay in filing a reference application filed by the Commissioner under un-amended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and righ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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