TMI Blog2012 (3) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... power to condone a delay beyond sixty days though upto an extent of thirty days - Once the legislature has laid down a period within which an appeal has to be filed and has prescribed the extent to which a delay beyond that period can be condoned, recourse to the provisions of Section 5 of the Limitation Act, 1963 would stand “ expressly excluded” within the meaning of Section 29(2) of the Limitation Act, 1963 - Decided against the assessee - WRIT PETITION NO.1252 OF 2011 - - - Dated:- 15-3-2012 - DR.D.Y.CHANDRACHUD AND M.S.SANKLECHA, JJ. Mr.Kamal Bulchandani I/b. Kamal Co. for the Petitioner. Mr.R.Ashokan with Mr.Jitendra B.Mishra for the Respondents. ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) : In these procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 35 of the Central Excise Act, 1944 provides that any person aggrieved by a decision or order of a Central Excise Officer, lower in rank than a Commissioner, may appeal to the Commissioner of Central Excise (Appeals) within sixty days from the date of the communication of the order. Under the proviso, the Commissioner (Appeals) is empowered, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, to allow it to be presented within a further period of thirty days. The submission of the Petitioner is that notwithstanding the fact that the Legislature under the proviso to Subsection (1) of Section 35 has laid down an outer limit of a further period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection and recovery of Central Excise duty on goods manufactured or produced in India. In Subsection (1) of Section 35, the Legislature has mandated that an appeal before the Commissioner of Appeals has to be filed within sixty days from the date of the communication of the order. Under the proviso, the Commissioner (Appeals) is permitted to allow the appeal to be filed within a further period of thirty days on sufficient cause being shown to his satisfaction. In other words, the clear intent of Parliament was that the power to condone the delay can be exercised only subject to sufficient cause being shown and to an extent of an outer limit of thirty days beyond the period of sixty days prescribed for filing of an appeal. Now, it is well s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the Supreme Court in Union of India vs. Kirloskar Pneumatic Company.1996 (84) E.L.T. 401 (SC) While construing the provisions of Section 27 of the Customs Act,1962, the Supreme Court noted that a claim for refund could be made only in accordance with the provisions of that Section which inter alia included a period of limitation mentioned therein. In that context, the Supreme Court held as follows : Yet the question is whether it is permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only upto thirty days after expiry of sixty days which is the preliminary limitation period for preferring an appeal. Hence, the Supreme Court ruled that in the absence of any clause permitting condoning of the delay by showing sufficient cause after the prescribed period, there is a complete exclusion of Section 5 of the Limitation Act, 1963. The submission before the Supreme Court in regard to Section 29(2) was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. 8. Counsel appearing on behalf of the Petitioner submits that unlike Section 35H which provided an absolute period of limitation of 180 days, Section 35 to which the present Petition relates, does provide a power to condone a delay beyond sixty days though upto an extent of thirty days. Hence, it was sought to be urged that there was no absolute bar to take recourse to the provisions of Section 5 of the Limitation Act, 1963. The submission cannot be accepted. Once the legislature has laid down a period within which an appeal has to be filed and has prescribed the extent to which a del ..... X X X X Extracts X X X X X X X X Extracts X X X X
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