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2017 (1) TMI 330 - SUPREME COURT

2017 (1) TMI 330 - SUPREME COURT - [2017] 391 ITR 244, 2017 (345) E.L.T. 578 (SC) - Condonation of delay - Interpretation of statute - Whether provisions of Section 5 of the Limitation Act, 1963 are applicable in respect of revision petition filed in the High Court under Section 81 of the Assam Value Added Tax Act, 2003? - - Held that: - In the task of interpreting and applying a statue, Judges have to be conscious that in the end the statue is the master not the servant of the judgment and .....

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SIKRI AND ABHAY MANOHAR SAPRE JJ. Mr. Arunabh Chowdhury, Adv., Mr. Anupam Lal Das, Adv., Mr. Karma Dorjee, Adv., Mr. Vaibhav Tomar, Adv., Ms. Shruti Choudhry, Adv. and Mr. Anirudh Singh, Adv. for the Appellants. Mr. Nalin Kohli, Adv., Mr. Ankit Roy, Adv., Ms. Vishakha Ahuja, Adv. and Mr. Shuvodeep Roy, Adv. for the Respondents. JUDGMENT A.K. SIKRI, J. Leave granted. 2. The question of law which has fallen for determination in these appeals is as to whether provisions of Section 5 of the Limitat .....

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ax Act, 1993 as well as the VAT Act and the Central Sales Tax Act, 1956. Based on the sales of his business, the appellant had submitted the declaration in Form C for the years 1998-1999, 1999-2000, 2000-2001 and 2001-2002 reflecting the value of sales. Based on the representation made by the appellant, Respondent No. 2/Superintendent of Tax allowed full exemption of sales tax as per Section 8(5) of Central Sales Tax Act, 1956. But, the information given by the appellant turned out to be false a .....

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spondent No. 3 had directed the appellant to deposit 25% of the demanded dues within 30 days and stayed rest of the demand. The appellant preferred appeals before the Assam Board of Revenue/Appellate Tribunal against the order dated 29.07.2005, which was dismissed by the order dated 26.08.2008. A review application filed against the aforesaid order came to be dismissed by the Appellate Tribunal by the order dated 27.08.2013. Aggrieved, appellant filed Revision Petitions under section 81(1) of th .....

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pplicable. For this purpose, the High Court has referred to Section 84 of the VAT Act which makes provisions of Sections 4 and 12 of the Limitation Act, 1963 to such petitions. On that basis, it is held by the High Court that since only Sections 4 and 12 of the Limitation Act, 1963 are made specifically applicable to these proceedings, by necessary implication Section 5 of the Limitation Act stands excluded. 5. It was argued by Mr. Chowdhury, learned counsel appearing for the appellant, that the .....

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ainst the order of the taxing authority can be filed with the appellate authority within 60 days from the date of receipt of such order of the taxing authority. Sub-section (2) of Section 79 of the VAT Act empowers the appellate authority to entertain the appeal even beyond 60 days, provided it is presented within a further period of 180 days, if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the stipulated period of 60 .....

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within the aforesaid period of sixty days, it may admit an appeal after the expiry of the said period provided it is presented within a further period of one hundred eighty days 6. The learned counsel next referred to Section 80 of the VAT Act 80. Appeals to the Appellate Tribunal: (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order,- (a) an order passed by the Appellate Authority under Section 79, and (b) an order passed by an authorit .....

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deals with appeals to the Appellate Tribunal inter alia against the orders of the Appellate Authority. Here also, period of 60 days for preferring such an appeal is provided under sub-section (3) of Section 80 of the VAT Act and proviso to sub-section (3) empowers the Appellate Tribunal to condone the delay, if the appeal is preferred within a further period of 120 days, on sufficient cause being shown for not filing the appeal within 60 days of limitation prescribed. The learned counsel contra .....

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reas there was specific provision for condonation of delay in filing appeals under Sections 79 and 80 of the VAT Act, no such equivalent provision was made in Section 81 of the VAT Act. As per Section 81 of the VAT Act, revision can be preferred to the High Court against the order of the Appellate Tribunal within 60 days. However, there is no provision giving specific power to the High Court to condone the delay if the revision is preferred beyond 60 days. As per the learned counsel, the reason .....

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1963 were made applicable for specific purpose of computing the period of limitation under the said Chapter and High Court committed a grave error while holding that because of the aforesaid provision only Sections 4 and 12 of the Limitation Act, 1963 were made applicable to the VAT Act thereby excluding other provisions of the Act. 8. For this purpose, the learned counsel relied upon Section 29(2) of the Limitation Act, 1963 Section 29(2) of the Limitation Act, 1963 reads as under: 29(2). Where .....

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h, they are not expressly excluded by such special or local law. which makes provisions contained in Sections 4 to 24 (inclusive) of the Limitation Act, 1963 applicable in case of suit, appeal or application under any special or local law, where these provisions are not expressly excluded by such special or local law. 9. It was argued that in the absence of any provision expressly excluding the applicability of Sections 4 to 24 of the Limitation Act, 1963, those Sections were applicable qua revi .....

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t acquittal of the petitioners by the trial court, in spite of the mandatory period of limitation provided in sub-section (4) of Section 417. Question arose whether in the case of Kaushalya Rani v. Gopal Singh (1964) 4 SCR 982, which held Section 417, Cr.P.C., 1898 a special law and excluded application of Section 5 on a construction of Section 29(2)(b) of the old Act of 1908 applied under the corresponding provision of Limitation Act, 1963 which governed the case. The Court held that since the .....

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rmining any period of limitation prescribed for any suit, appeal or application by any special or local law the application of Section 5 was in clear and specific terms excluded. But under Section 29(2) of Act, the provisions of Section 5 shall apply in case of special or local law to the extent to which they are not expressly excluded by such special or local law. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29 (2), it is only if the special or loca .....

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der Section 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (as it stood prior to its amendment in 2005). The Court held that since unamended Section 19 did not contain any express rider on power of the High Court to entertain applications for revision after expiry of prescribed limitation thereunder, provisions of Limitation Act, 1963 would become applicable vide Section 29(2) thereof. It further held that as the High Court was conferred with suo moto power under Section 19 of Adhiniyam, 1 .....

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by necessary implication the other provisions of the Limitation Act, 1963 including Section 5 thereof stood excluded. He submitted that for the purpose of finding whether other provisions are excluded or not, the focus should be on the scheme of the special law as laid down in Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133 wherein it was held that even if there exists no express exclusion in the special law, the Court has right to examine the provisions of the special law to arri .....

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of Commissioner of Customs and Central Excise v. Hongo India Private Limited & Anr. (2009) 5 SCC 791, the question that fell for determination was that as to whether the High Court had power to condone the delay in presentation of the reference application under unamended Section 35-H(1) of the Central Excise Act, 1994 beyond the period prescribed by applying Section 5 of the Limitation Act. Unamended Section 35-H dealt with reference application to the High Court. Under sub-section (1) ther .....

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e filed within 60 days, there was a specific provision for condonation of delay upto 30 days if sufficient cause is shown. Likewise, appeal to the Appellate Tribunal could be filed within 90 days under Section 35-B thereof and sub-section (5) of Section 35-B gave power to the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Further, Section 35-EE provided 90 days time for filing revision by the Central Government and proviso thereto empowe .....

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uch power, the High Court did not have power to condone the delay. In that case also, provisions of Section 29(2) of the Limitation Act, 1963 were pressed into service. But this argument was rejected in the following manner: 30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically Civil Appeal Nos. 49-50 of 2017 Page 12 of 20 (arising out of SLP (Civil) Nos.21865-21872 of .....

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er period for filing an appeal and making reference to the High Court is mentioned in the Act. 31. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd. [(2008) 3 SCC 73] The Commissioner of Customs, Central Excise, Noida was the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35-H(1) of the Act, the two-Judge Bench taking note of .....

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in 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion .....

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d with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. 14. In the process, the Court also explained the expression 'expressly excluded' appearing in Section 29(2) of the Limitation Act, 1963 in the following manner: 34. Though, an argument was raised based on Section 29 of the Limit .....

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which here in this case is the Central Excise Act. The nature of the remedy provided therein is 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 ca .....

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entral Excise Act relating to filing of reference application to the High Court. The aforesaid judgment is a complete answer to the arguments of the appellant. 15. It may be relevant to mention here that after the judgment in Hongo India Private Limited & Anr., Section 35-H of the Central Excise Act, 1994 was amended by the Parliament by Act 32 of 2003 with effect from 14.05.2003 giving power to the High Court to condone the delay by inserting sub-section (2A). It is, therefore, for the legi .....

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; but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are 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 .....

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on as to whether there was legislative intent to exclude the operation of Limitation Act. In the instant case, we find that Section 84 of the VAT Act made only Sections 4 and 12 of the Limitation Act applicable to the proceedings under the VAT Act. The apparent legislative intent, which can be clearly evinced, is to exclude other provisions, including Section 5 of the Limitation Act. Section 29(2) stipulates that in the absence of any express provision in a special law, provisions of Sections 4 .....

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that the Legislature intended only Sections 4 and 12 of the Limitation Act, out of Sections 4 to 24 of the said Act, applicable under the VAT Act thereby excluding the applicability of the other provisions. 18. Judgment in the case of Mangu Ram would not come to the aid of the appellant as the Court found that there was no provision under the Cr.P.C. from which legislative intent to exclude Section 5 of the Limitation Act could be discerned and, therefore, Section 29(2) of the Limitation Act was .....

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