TMI Blog2015 (3) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... xpiry of 60 days, however, since they were within the condonable period of 90 days. The present appeal was beyond the statutory period of 90 days and the authority has rightly rejected the same, since he cannot be expected to exercise his discretionary power beyond the permissible period that was prescribed by the statute. 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, appeals including the appeal to the Supreme Court and hearing before the Supreme Court, period of limitation, offences and prosecution. Thus, it is an independent Act. Therefore, the Customs Act, 1962 is a complete code and the provisions of Section 128 (1) clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to entertain any application for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dilemma as to whether an appeal is to be filed against the Bill of Entry or a refund application is enough for the differential amount and that they were under the bona fide impression that inasmuch as the previous consignments were under provisional basis, the present Bill of Entry also would be re-assessed at the time of final assessment of the earlier Bill of entries and that they consulted outside legal experts which took considerable time. 5. The learned counsel appearing for the petitioner would submit that the petitioner has a good case on merits and the authority, without considering the sufficient satisfactory grounds for condoning the delay made out by the petitioner, has rejected the appeal on the technical ground of limitation, which would deprive of its substantive right. He would contend that the High Court, being the Court of Record having unlimited jurisdiction, while exercising its inherent powers, can set right the order that was passed by judicial or quasi-judicial authorities, subordinate to it and when the authority, has erred in rejecting the appeal on the technical ground of limitation though acceptable reasons were made out to condone the delay, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Customs and Central Excise versus Hongo India Private Limited and another (2009) 5 SCC 791. Therefore, he prayed for dismissal of the writ petition. 7. Heard the learned counsel appearing on either side and perused the materials placed on record. 8. Section 128 of the Customs Act reads as under: 128. Appeals to Commissioner (Appeals)- (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1-A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing; Provided that no such adjournment shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made to a decision reported in Singh Enterprises versus CCE (2008) 3 SCC 70, wherein, the Hon ble Supreme Court, interpreted Section 35 of the Central Excise Act, 1944 which is pari material to Section 128(1) of the Customs Act and observed as under in para 8: 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short the Limitation Act ) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. 36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act. 37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the reference application filed by the Commissioner under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal as far as question of condonation of delay is concerned, but it has observed that none of the authorities have decided the question on merits after the second round of litigation began and therefore, the question of merger would not arise until the matter is decided on merit and hence, the High Court upheld the challenge to the order-in-original treating the circumstances as extraordinary and in such circumstances, the delay came to be condoned. These facts are quite different from the facts involved in the writ petition. As regard the decision in K.C.Sharma and others is concerned, it is to be noted that the Hon ble Supreme Court has followed the doctrine of judgment in rem and condoned the delay and granted the relief since already, there was a finality as regards the validity of the impugned notifications and the similarly placed persons, who made their claim for pension were found eligible to receive the same. Therefore, the facts are not similar to the one involved in the present writ petition. Likewise, the relief granted in W.P.No.4770, 2496 and 2497 of 2013 by this Court, cannot also be extended to the case of the petitioner, since in that case, no issue rega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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