TMI Blog2018 (1) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) TMI 1031 - SUPREME COURT], the Hon'ble Apex Court held that Section 5 of the Limitation Act cannot be invoked by the Court to allow an appeal to be filed, under Section 125 of the Electricity Act, 1963, after more than 120 days. Delay cannot be condoned - appeal dismissed. - Tax Case (Revision) SR.Nos.45251, 45643, 45660 of 2006, M.P.Nos.1, 1 and 1 of 2013 - - - Dated:- 22-11-2017 - S. Manikumar And R. Suresh Kumar, JJ. For the Petitioner : Mr.K.Venkatesh Government Advocate For the Respondents : Mr.K.Rajashekar, Mr.MP.Senthil Kumar Ms.Suganya for Mr.M.Sriram ORDER ( Order of the Court was made by S. Manikumar, J. ) After going through the material on record, Mr.K.Venkatesh, learned Government Advocate, fairly submitted that the Tax Case (Revision) Sr.Nos.45251, 45643 and 45660 of 2006, have been filed beyond the extended period of limitation provided in Section 38 of the then Tamilnadu General Sales Tax Act, 1959. 2. On the aspect, as to whether, the appellate authority is empowered to condone the delay of the extendable period, let us consider few decisions of the Hon'ble Apex Court, rendered under various enactments, wherein specific time li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the explanation given by the assessee for not filing the appeal within the period prescribed under the Act, it cannot direct the appellate authority to consider the matter on merits as the High Court exercising jurisdiction under Article 226 of Constitution of India, cannot re-write the provisions of the Act. It is worthwhile to extract the reported judgments considered in Indian Coffee Worker's Co-op. Society Ltd.,'s case (cited supra), which are reproduced hereunder: In Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P., [AIR 1976 SC 2161], the Supreme Court was considering Section 58 of the Motor Vehicles Act. The Supreme Court has ruled as under:- Section 58 of the said Act provided that a permit may be renewed on an application made for such purposes, provided that the application for renewal of a permit shall be made (a) in the case of stage carriage permit or public carrier's permit, not less than 120 days before the date of expiry; and (b) in any other case not less than 60 days before the date of its expiry. Sub-section (3) of that Section further provided that: Notwithstanding anything contained in the first proviso to subsection(2), t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n other words, it shall have no power to condone the delay. There is thus an express provision in subsection (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days. 11. It has to be noted that even though in the provisions of the Act (Section 58 of the Motor Vehicles Act of Uttar Pradesh), the wordings condonable only if it is of not more than 15 days are not there, the Supreme Court so held on the basis of the wordings employed in the provisions of the Act, which read thus:- may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than 15 days after the said last date. 12. The next decision is the one reported in K.Ganesh v. State of Tamil Nadu [ 1988 STC (VOL.68) 84]. That was a case where a petition was filed to condone the delay of 211 days in filing the Tax Case Revisions against the order of the Sales Tax Appellate Tribunal, Coimbatore. The Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19[1] as it originally stood empowered the appellate authority to admit an appeal after a period of 30 days, if it is satisfied that the dealer had sufficient cause for not preferring the appeal within the prescribed period of 30 days subject to the payment of the admitted tax due. Under the amended provision, the delay can only be condoned up to a further period of 30 days. 14. In a recent Judgment, the Supreme Court of India, in Union of India v. M/s.Popular Construction Co., [2001 (4) CTC 213], considered Section 34 of Arbitration and Conciliation Act, 1996 and ruled that when the statue positively prescribes 90 days as time limit for the purpose of filing an application under Arbitration Act, that provision is to condone the delay for a further period of 30 days only and Section 5 of the Limitation Act does not apply in view of express exclusion and scheme of the Act and delay beyond a period of 30 days after expiry of the original period of limitation cannot be condoned. It will be useful to quote in verbatim, the exact wordings employed by the Supreme Court, which reads thus:- As far the language of Section 34 of 1996 Act is concerned, the crucial words are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. (iii) In Commissioner of Customs Central Excise v. Hongo India (P) Ltd., reported in 2009 (236) ELT 417 (SC), the Hon'ble Apex Court considered a question, as to whether, High Court has power to condone the delay, in presentation of a reference application, under unamended Section 35H(1) of the Central Excise Act, 1944, beyond the prescribed period, by applying Section 5 of the Limitation Act, 1963. After considering the decisions in Singh Enterprises v. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC), at Paragraphs 18 to 20, the Hon'ble A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided 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. 20) Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court. It was contended before us 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 excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Tribunal's order, in terms of the provisions to Section 125 of the Electricity Act, 2003, the Apex Court can extend the time to file an appeal to a maximum of 60 days only and the power under Section 5 r/w. Section 29(2) of the Limitation Act can be exercised for condonation of delay beyond the period of 120 days. Decision in Mukri Gopalan v. Cheppilat Puthuapurayil Aboobacker [(1995) 5 SCC 5] was pressed into service. Besides, a contention has also been made that, by virtue of the impugned order therein, huge liability has been fastened against the appellant and if the appeal is not entertained, it will suffer irreparable injury. Learned counsel appearing for the 3rd respondent therein, has submitted that in view of the plain language of the proviso to Section 125 of the Electricity Act, the Hon'ble Supreme Court has no power to extend the period for filing an appeal beyond 120 days and if the provisions of the Limitation Act is invoked, it would negative the legislative intent, which has prescribed a special limitation, for filing an appeal against any decision or order of the Tribunal. Reliance has also been placed on the decision of the Hon'ble Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding under any such law. (4) Sections 25 and 26 and the definition of easement in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend. After considering several decisions, the Hon'ble Supreme Court, at Paragraphs 20, 25 to 27 and 32, held as follows: 20. Section 125 provides for an appeal to this Court against any order or decision of the Tribunal which can be filed within 60 days from the date of communication of the decision or order of the Tribunal. The limitation placed on the jurisdiction of this Court is that the appeal can be entertained only on one or more of the grounds specified in Section 100 of the Code of Civil Procedure. Proviso to Section 125 empowers this Court to entertain the appeal within a further period not exceeding 60 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. In other words, an appeal under Section 125 can be filed within a maximum period of 120 days if this Court is satisfied that there was sufficient cause for not filing the same within 60 days from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are not expressly excluded by the special or local law. 32. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory. In Chhattisgarh State Electricity Board's case (cited supra), the Hon'ble Apex Court held that Section 5 of the Limitation Act cannot be invoked by the Court to allow an appeal to be filed, under Section 125 of the Electricity Act, 1963, after more than 120 days. (v) In Gopinath v. CESTAT, Chennai reported in 2013 (32) STR 172 (Mad.), after considering the decision in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (SC)], this Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Ballygunge Charge and another [(2012) 56 VST 258 (WBTT), Gopinath Sharma v. CESTAT, Chennai [2013 (32) STR 172 (Mad.)] and Gopinath Sharma v. CESTAT [2013 (32) STR J78(SC)], a Hon'ble Division Bench of this Court dismissed the Civil Miscellaneous Appeal. Substantial question of law, as to whether, the Tribunal ought to have condoned the delay and entertained the appeal, has been held against the appellant therein. There is no reason, as to why, the reported judgment cannot be made applicable to the instant appeal. (vii) In Saradha Travels v. Commissioner of Service Tax reported in 2015 (3) STR 433 (Mad.), an appeal was filed with a delay of one year and six months. The Tribunal dismissed the appeal. Adverting to the substantial questions of law, raised by the appellant therein, at Paragraph 9, this Court held as follows: 9. The Tribunal relied on the decision of the Honourable Supreme Court reported in 2008 (221) ELT 163 (SC) (Singh Enterprises v. CCE, Jamshedpur) which is followed by this Court in the decision reported in 2013-tiol-168-HC-Mad (M/s.Gopinath and Sharma V. CESTAT) and dismissed the appeal on the proposition that the Commissioner (Appeals) cannot cond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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