TMI Blog2004 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Customs (Appeals), it transpires that the appeal was filed on 13-4-2002; a notice was issued on 14-8-2002, calling upon the appellant that the appeal was not maintainable. The Consultant of the petitioner stated that he has nothing more to add to what is stated in the memorandum of appeal. To substantiate his say, for condonation of delay, a medical certificate was produced. 4.The Appellate Authority pointed out that Section 128 of the Customs Act, 1962 (hereinafter referred to as the Act) stipulates a period of limitation of 60 days from the date of communication of the order for preferring an appeal. The Commissioner was also aware that if the appellant was prevented by sufficient cause from presenting the appeal and such delay is of not more than 30 days, the delay can be condoned, however, if it is beyond 30 days, then the appeal cannot be entertained. As there was delay of more than 30 days, the appeal was dismissed as time barred. Against this order, the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi, was approached by preferring an appeal being No. C-01/03A. The Tribunal dismissed the appeal affirming that the Commissioner (Appeals) was not com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er period of 30 days, if the Commissioner (Appeals) is satisfied that within such period of 30 days, the appeal could not be preferred for the reasons beyond the control of the appellant. The learned Single Judge also observed that Section 35 of the Central Excise Act does not indicate that Section 29(2) of the Limitation Act read with Section 5 of the said Act, excludes the applicability of the said provisions to Section 35 of the Central Excise Act. It is in view of this, though the appeal was filed beyond 99 days, that the Court remanded the matter with the direction so dispose of the application in the light of the observations made in the said order. 7.A Division Bench of the Andhra Pradesh High Court in the case of Shanti Alloys Pvt Ltd. v. C.C.E., Hyderabad, reported in 1999 (109) E.L.T. 79, had an occasion to examine the identical question. The Division Bench pointed out that it cannot be said that the Tribunal has committed any illegality in dismissing the appeal filed against the order of the appellate authority refusing to condone the delay and to entertain the appeal. In view of the specific provision contained in the proviso to Section 35(1) of the Central Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, by virtue of Section 29(2) of the said Act, it shall be deemed as if the period prescribed by the different Act is the period prescribed by the Schedule to the Limitation Act. However, it would be difficult to say that Section 5 of the Limitation Act is intended to be made applicable in view of the proviso to Section 128 of the Act in the instant case. 11.In the case of Van Co. v. Babubhai Lallu Bhai, reported in 1981 Gujarat Law Herald 5, a Division Bench of Gujarat High Court, while examining sub-section (7) of Section 7 of the Payment of Gratuity Act, 1972 and the provisions contained in the Limitation Act, pointed out that the provisions in Section 7(7) are inconsistent with Section 5 of the Limitation Act. Sub-section (7) of Section 7 of Payment of Gratuity Act, provides for extension of the period of limitation similar to one which is provided in Section 128 of the Act. 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, confiscation of goods, conveyance, imposition of penalties, settlement of cases, ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 29 of the Limitation Act, 1963. It specifically states that these provisions shall apply only so far as and to the extent to which, they are not expressly excluded by special or local law. Reading the language of Section 128 of the Customs Act and Section 5 of the Limitation Act, it is very clear that extension of time for a period of 30 days only can be condoned subject to satisfaction and not beyond that. From an examination of Section 128 of the Customs Act, it is very clear that Section 5 of the Limitation Act is expressly excluded as a specific provision is made in Section 128. 17.In the case of Mohd. Ashfaq v. State Transport Appellate Tribunal, AIR 1976 SC 2161 = (1976) 4 SCC 330, the Supreme Court had an occasion to examine Section 58(2) of the Motor Vehicles Act, 1939, its proviso and sub-section (3) for renewal of permits. Para 8 of the judgment is reproduced hereunder :- It is, therefore, clear that sub-section (3) of Section 58"8. confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time-limit specified in the proviso to sub-section (2), but not more than 15 days late and the discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.The period of limitation as also condonable period is prescribed and, therefore, if the application is preferred after the expiry of the period indicated in Section 128 and 30 days, the Commissioner was not entitled to condone the delay. 20.Considering the scheme, and language of the Sales Tax Act, it does appear that the application of Section 5 of the Limitation Act, is excluded. This, in the opinion of the Court, is the only possible interpretation as the legislative intent is clear. The period of 60 days is prescribed as limitation for preferring an appeal, secondly the appellate authority has no discretion to extend this period beyond the further period of 30 days, even if sufficient cause is shown. Reading the Section, it is very clear that the Act gives no jurisdiction to the appellate authority to extend the limitation, even in a "suitable" case for a further period of more than thirty days. It is also required to be noted that delay in disposal of revenue matters adversely effects the steady inflow of revenue and financial stability of the State. The scheme of Section 128 of the Act is, therefore, designed to ensure speedy and final determination of fiscal matters wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1963 (2) SCR 850, and it was held that a sales tax officer under U.P. Sales Tax Act, 1948 was not a "Court" within the meaning of Section 195 of the Code of Criminal Procedure, although he is required to perform certain quasi judicial function. 24.It is also required to be noted that as pointed out by the Supreme Court in case of Parson Tools Plant (supra) the taxing authorities are not "Court" and therefore, Section 5 of the Limitation Act, 1963, cannot be invoked as that Section empowers the Court to extend the period of limitation on being satisfied. In the case of Parson Tools and Plant (supra) Section 14(2) of the Limitation Act, 1963 was sought to be invoked. However, the Court pointed out that, in terms or in principle, Section 14(2) cannot be invoked for excluding the time spent in prosecuting an application under Section 68 of UP Sales Tax Rules, 1948 for setting aside an order of dismissal of appeal in default in computing the period of limitation by filing a revision under Section 10 of the UP Sales Tax Act, 1948. The Court also held that the appellate authority and the judge (Revisions) Sales tax, exercising jurisdiction under the Sales Tax Act are not Courts but a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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