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TMI Blog2012 (3) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... . An appeal lies against the order of the Assistant Commissioner to the Commissioner of Central Excise (Appeals), but no appeal was filed within the period of limitation prescribed by Section 35 of the Central Excise Act, 1944. The submission of the Petitioner is that in exercise of the powers conferred by Section 5 of the Limitation Act, 1963, it would be open to this Court while exercising its jurisdiction under Article 226 of the Constitution to condone the delay, even though it is beyond the period prescribed by Section 35 of the Central Excise Act, 1944. Alternatively, it has been prayed that the order of the Assistant Commissioner, dismissing the rebate applications may be made subject to the outcome of the Revision Application filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act, 1963, the provisions of Sections 4 to 24 are to apply to the period of limitation prescribed for any suit, appeal or application under a special or local law only in so far as, and to the extent to which they are not expressly excluded by such special or local law. The submission is that in order that there should be an express exclusion, there must be an absolute embargo placed by the express words of the statute excluding the application of Section 5 of the Limitation Act, 1963. 4. We are unable to accept the contention. Subsection (2) of Section 29 of the Limitation Act provides as follows: "(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l scheme of the Act. Where the scheme of the Act indicates that the Legislature intended that an Appellate Authority should entertain an appeal by condoning a delay upto a certain period, that would evince a clear intent to exclude the provisions of Section 5 of the Limitation Act, 1963. In the present case, the clear provision is that an appeal has to be filed within sixty days and beyond that a delay upto thirty days can be condoned. The delay in excess of thirty days cannot be condoned by taking recourse to the provisions of Section 5 of the Limitation Act which would stand expressly excluded within the meaning of Section 29(2). The High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, cannot permit or di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived." 7. In a more recent judgment of the Supreme Court in Commissioner of Customs and Central Excise vs. Hongo India (P) Ltd.,2009(236) E.L.T. 417 (SC) the provisions of Section 35H(1) of the Central Excise Act, 1944 prior to its amendment came up for consideration before the Supreme Court. The issue was whether a delay b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 considered view, 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 exclude their operation. In other words, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner would completely defeat the scheme of the Central Excise Act, 1944. In any event, the High Court in the exercise of its jurisdiction under Article 226 of the Constitution cannot issue a direction which would command the authorities constituted under the Act to bypass or breach the provisions made in the statute. The Petitioner not having filed an appeal against the order of the Assistant Commissioner, dated 5 March 2010 within limitation, this Court would not be justified in entertaining the petition and directing the Commissioner (Appeals) to condone the delay. In that view of the matter, it would not also be proper for this Court to grant the alternate prayer. For these reasons, the petition is not maintainable and is accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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