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TMI Blog2008 (9) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... February 2, 2006 and, admittedly, the order passed by this court on February 2, 2006 in rejecting the said revision petition has attained finality; but and however, for the learned counsel for the petitioner having pressed on the revision petition and submissions having been made on the question of applicability of section 5, Limitation Act for condonation of delay in filing the revision petition to this court under section 86 of the Act of 1994 and such issue being of recurrence, it appears appropriate to deal with the submissions as made at the Bar. Learned counsel Mr. Rajesh Jain appearing for the non-petitioner with the learned counsel Ms. Ajanta Saraswat, while opposing the application for condonation of delay has argued with emphasis that the Act of 1994 is a complete code in itself and the scheme of this enactment makes it clear that it has independent provisions relating to all aspects like filing of returns, assessment, search, seizure, imposition of penalty, appeal, revision, period of limitation, etc.,; and separate periods of limitation have been provided under different provisions like section 26(1), 26(5) and so also for filing of first appeal under section 84 and fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, and Fairgrowth [2004] 122 Comp Cas 683 (SC); [2004] 11 SCC 472 would apply and the learned counsel has referred to the decisions in Commissioner of Central Excise v. Jawahar Mills Ltd. [2002] 125 STC 264 (SC); [2001] 132 ELT 3 (SC), Devi Dass Gopal Krishan Pvt. Ltd. v. State of Punjab [1994] 95 STC 170 (SC); [1994] Supp 2 SCC 59 and M. Ravji v. State of Gujarat [1993] 89 STC 228 (Guj) to submit that the interpretation of Supreme Court qua the provisions in pari materia would cover the issue. Learned counsel Mr. Rishabh Sancheti arguing on behalf of the petitioner has countered with equal emphasis that exclusion of power to condone delay and applicability of section 5 of the limitation cannot be readily inferred and when the statute has not provided either way, i.e., nether inclusion nor exclusion of the provisions of the Limitation Act, and further when the entire scheme of the enactment is looked at, it is clear that wherever the proceedings were to be taken before the authorities other than the court and limitation was provided therefor and it was intended by the Legislature that delay could be condoned, specific provisions in that regard have been made. But, according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el submitted that in view of the phraseology of section 29 of the Limitation Act, it is the scheme of special law or local law that would be determinative of the question as to whether Limitation Act does or does not apply. Learned counsel has referred to the Full Bench decision of the honourable Bombay High Court in the case of Commissioner of Income-tax v. Velingkar Brothers [2007] 280 ITR 382. Having given a thoughtful consideration to the rival submissions, this court is inclined to agree with the submissions that applicability of section 5 of the Limitation Act is not excluded for the purpose of a revision petition filed under section 86 of the Act of 1994; and delay in filing such revision petition could be condoned under the said provision. The provisions relating to appeals and revisions under the Act of 1994 are contained in its Chapter-IX. While section 84 provides for an appeal to the appellate authority against any order of an Assistant Commissioner, a Commercial Taxes Officer, an Assistant Commercial Taxes Officer or in-charge of a check-post, section 85 provides for appeals to the Tax Board against kind of the orders referred in its sub-section (1); and section 86 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The respondent may, on receipt of notice that an appeal against an order referred to in sub-section (1) has been preferred by the appellant, notwithstanding that he may not have appealed against such order, within one-hundred-and-twenty days in the case of an officer of the Commercial Taxes Department and within sixty days in the case of a dealer, of receipt of the notice, file a memorandum of cross-objections verified in the prescribed manner, against any part of the said referred order and such memorandum shall be disposed of by the Tax Board as if it were an appeal within the time specified in sub-section (2) or (3). (6) The Tax Board may admit an appeal or permit the filing of memorandum of cross-objections after the expiry of the limitation provided in sub-sections (2), (3) and (5), if it is satisfied that there was sufficient cause for not presenting the same within that limitation. (7) to (11) . . . 86.. Revision to the High Court.-(1) Any dealer aggrieved by an order passed by the Tax Board under sub-section (11) of section 85 or under sub-section (1) of section 37, may, within, ninety days from the date of service of such order, apply to the High Court in the prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of section 3 of the Limitation Act become applicable with the fiction as if the period provided by the special or local law were the period provided by the Schedule to the Limitation Act. The implication of such provision is that, subject to the provisions contained in sections 4 to 24 of the Limitation Act, every suit instituted, appeal preferred, and application made after the prescribed period is required to be dismissed even if limitation is not set up as a defence (vide section 3 of the Limitation Act). It is this provision of section 3 of the Limitation Act whereby and whereunder a belated proceeding, taken up beyond the period of limitation, is liable to be dismissed; but it is, of course, subject to the provisions of sections 4 to 24 of the Limitation Act. Therefore, if because of applicability of any of the said provisions of sections 4 to 24, the period of limitation is available to be extended or enlarged or any period is to be excluded, the bar of limitation would be considered subject to such provisions of extension, enlargement or exclusion, as the case may be. When the fiction has been created by the first part of section 29(2) to make applicable for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial aspects and implication does not appear available against the applicability of section 5 of the Limitation Act, it does not appear necessary to elongate this discussion with reference to all the cited decisions; however, the decisions strongly relied upon by the learned counsel may be noticed. In the case of Fairgrowth [2004] 122 Comp. Cas 683; [2004] 11 SCC 472, the honourable Supreme Court was concerned with the question as to whether the Special Court constituted under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, has power to condone the delay in filing the petition under section 4(2) of the said Act. In holding that section 29(2) of the Limitation Act does not apply to such proceedings, the honourable Supreme Court was pleased to refer to the position that the time-limit for filing the petition for objection under section 4(2) was mandatory and compulsive in the sense that the period prescribed cannot be extended by the court under any inherent jurisdiction; and then, there had been an express provision for condonation of delay under section 10(3) of the said Act and further, there had been overriding provision in section 13 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of section 14(2) of the Limitation Act." The decisions in Punjab Fibres [2008] 3 SCC 73 and Salora International [2006] 206 ELT 61 (All) had been of the cases relating to section 35H of the Central Excise Act, 1944 for filing an application for reference and the legislative intent was determined on comparing other provisions of the statute. Looking to the scheme of the said Act and the nature of remedy, applicability of section 5, Limitation Act was ruled against. Noticeable it is that under the said Act, so far as the appeal before the Commissioner (Appeals) is concerned, there is a limited power for condonation of delay although there is no such restriction while making the provisions of section 5, Limitation Act applicable to the appeals and cross appeals before the Tribunal. The said enactment has its own scheme and it is difficult to agree with the submissions of the learned counsel for the non-petitioner that the said decisions related with Central Excise Act would directly apply for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court at the instance of Commissioner to be an imperative period and not available for any alteration, in the opinion of this court, is not correct on the purport and import of the phraseology of the said provision. Section 86 of the Act of 1994 in its terms gives a right to any dealer aggrieved of the order passed by the Tax Board under section 85(11) or under section 37(1) of the Act that he may, within 90 days from the date of service of order, apply to this court for revision in the manner prescribed; whereas section 86(2) gives such a right to the Department but in the manner that if the Commissioner would feel aggrieved of any such order passed by the Tax Board under section 85(11) or section 37(1) of the Act, he may direct any officer or in-charge of check-post to apply to this court for revision. It is imperative for such officer or in-charge of the check-post to make application to the High court within 180 days from the date the impugned order was communicated to the Commissioner. The expression "shall" has its role and operation only to make it obligatory for the officer concerned, who has been directed by the Commissioner, to apply for revision. It is too far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse, if the legislative intent was to curtail such power, either express provision would have been there or other provisions would have indicated so. The other provisions only indicate that so far first and second appeals are concerned, the authorities have unlimited power to condone delay. The remedy provided by section 86 of the Act of 1994 is applying for revision, on a question of law, to this court in continuation of appeals under sections 84 and 85. The nature of remedy being considered herein has all traces of a substantive right, more akin to appeal even when named a revision. Yet, the provision of section 86 cannot be considered a complete code in itself; and mere omission of stating powers for condonation of delay in section 86, looking to the nature of remedy and the scheme of the Act of 1994, does not lead to the necessary implication that section 5, Limitation Act is excluded. One could notice that sub-section (5) of section 86 provides that any person aggrieved by an order passed under sub-section (4) may apply for a review of the order to the High Court without providing the period of limitation therefor. Obviously, one shall have to look at article 124 of the Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler to the Deputy Commissioner (Appeals) were, however, allowed on March 24, 1999 and the learned appellate authority found with reference to the notifications dated March 4, 1992, March 7, 1994 and March 27, 1995 that earlier, in the notification dated March 4, 1992, the "room coolers" were liable to 12 per cent tax for being included in entry No. 87, viz., "refrigerators, room coolers, water coolers, deep freezers and components and parts thereof". However, in the notification dated March 7, 1994 the entry of "refrigerators, water coolers, deep freezers and components and parts thereof" was placed at item No. 83 but "room coolers" were specifically omitted therefrom. In the notification dated March 27, 1995, entry No. 87 referred to "air-conditioners, airconditioners plants and apparatus and appliances, refrigerators, water coolers, deep freezers and components and parts thereof" but room coolers were again omitted. The learned appellate authority held that in both the notifications dated March 7, 1994 and March 27, 1995, room coolers fell in the residuary entry and were liable for sales tax at ten per cent. The budget speech of the Chief Minister was also referred in that regard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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