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TMI Blog2020 (1) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... der the specific entry of "Branded Bread" specified under Entry 57 of Schedule I of the Act of 2003. 2. The facts of case are that the petitioner is a private limited company engaged in the trade of items such as biscuits, cakes, cookies, rusk bread and other bakery and confectionery products within the State of Meghalaya. It is registered as a dealer in the State of Meghalaya under the Act of 2003 under the jurisdiction of the Superintendent of Taxes, Circle-II, Shillong. The petitioner was assessed to tax and interest vide assessment order dated 06.06.2013 by the Assessing Authority namely, the Superintendent of Taxes, Circle-13, Shillong, for nine quarters ending 31.03.2011 to 31.03.2013 whereby, tax was levied on item 'Rusk'. The case set up by the petitioner before the Assessing Authority was that 'Rusk' is a form of 'bread' and is an exempted item falling under the category of 'Bread' under Schedule-I of the Act of 2003 with NIL rate of tax. The Assessing Authority however, taking recourse to the definition of 'manufacture' under the Act of 2003, levied tax on 'Rusk' under the residuary entry of Schedule-IV at the rate of 13.5% instead of treating it as an exempted product i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 126 of 2016 with the prayer to issue a writ of mandamus directing the Board of Revenue to consider the same. After several days, the Board finally dismissed the review petition vide order dated 03.06.2019, which was conveyed to the petitioner vide letter dated 10.07.2019 and received by him on 13.07.2019. The petitioner then approached this Court by filing WP(C) No. 336 of 2019 before this Court on 26.08.2019 seeking remedy against the judgment of the Board of Revenue on 15.07.2019. The said writ petition was taken up for arguments on 28.08.2019. However, on objection of the State about maintainability of the writ petition, the petitioner withdrew the writ petition and thereafter, filed the instant Civil Revision Petition on 02.09.2019. 6. The first and foremost contention of Dr. B.P. Todi, learned Senior Counsel appearing for the petitioner, is that applicability of Section 5 of the Limitation Act to Section 70 of the Act of 2003 has not been excluded either expressly or even by necessary implication. It is argued that Section 110 of the Act of 2003 merely provides that in computing the period of limitation under Chapter X, provisions of Sections 4 and 12 of the Limitation Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er contra, Mr. A. Kumar learned Advocate General opposed the application for condonation of delay and argued that the petitioner has approached this Court in the instant Revision Petition purportedly by virtue of provisions under Section 70 of the Act of 2003 against the judgement of the Appellate Tribunal i.e., the Board of Revenue. It is submitted that Sub-section (1) of Section 70 of the Act of 2003 provides for preferring a revision before the High Court within sixty days from the date of receipt of the judgement but this does not contain any provision for condonation of delay on showing sufficient cause if the same is not filed within the period of sixty days. The application for condonation of delay filed therewith is therefore not maintainable. It is argued that the Act of 2003 is a self-contained Code. In the absence of specific provision enabling the High Court to condone the delay, the application for condoning the delay cannot be entertained. Learned Advocate General referred to Sections 68 and 69 of the Act of 2003 which specifically provide for remedy of appeal before the High Court and Appellate Tribunal respectively. In both these provisions, 60 days has been prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case with full force. 10. Learned Advocate General further argued that Section 69 the Act of 2003 provides for remedy of appeal before the Appellate Tribunal. The aggrieved party can prefer Revision Petition thereagainst before the High Court under Section 70 of the Act of 2003. This Act however nowhere provides remedy of review of the order of the Appellate Tribunal exercising power under Section 69 of the Act. Review Petition being not maintainable before the Board of Revenue, the petitioner cannot, even otherwise, seek exclusion of time consumed by the Board of Revenue. Even otherwise rejection of the review petition does not result in merger of the main order therewith. The limitation for filing Revision Petition in any case has to be counted from the date of the original order. 11. Learned Advocate General in support of his arguments has also relied on the judgments of the Supreme Court in (2011) 14 SCC 160: Har Devi Asnani v. State of Rajasthan & Ors.,(1974) 2 SCC 133: Hukumdev Narain Yadav v. Lalit Narain Mishra, Civil Appeal Nos. 8276-8277 of 2019:Superintendent Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper & Anr. v. Excise and Taxati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Authority and the Revisional Authority, to review their order either on their own or upon application. Section 68 of the Act of 2003 in its Clause (a) provides for remedy of appeal to any assesses against an order passed by the Commissioner under Sections 66 or 67 before the High Court within sixty days from the date on which the order was communicated to him. However, Clause (b) of Section 68 provides that the High Court may admit an appeal preferred after the period of sixty days if it is satisfied that the assessee had sufficient cause for not preferring the appeal within that period. Section 69(1) provides that a person dissatisfied with the decision of the Appellate Authority and Revisional Authority may, within sixty days, after being served with notice of the decision, file a second appeal before the Appellate Tribunal. Sub-section (2) of Section 69 similarly provides that the Appellate Tribunal may admit an appeal even after expiry of sixty days if it is satisfied that the appellate had sufficient reason for not filling the appeal within the time specified in sub-section (1), provided it is filed within one year. Section 70(1) of the Act of 2003 however provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reasons to be recorded in writing, to review any order passed by any of them, either on their own or upon application, also does not prescribe any limitation period. It is trite that even if a particular time period of limitation has not been prescribed for filing revision or review, yet it can be entertained only if the same is filed within reasonable time. In other words, the Revisional Authority or the Reviewing Authority would have the discretion to refuse or to entertain the revision/review if the same has been preferred with unreasonable delay. Section 68 has conferred power on the High Court to admit the appeal against the order passed by the Commissioner under Sections 66 or Section 67 of the Act even after expiry of the period of limitation of sixty days if the appellant is able to satisfy that he had sufficient cause for not preferring the appeal within that period. In this instance also, even though no period of limitation has been provided for entertaining such appeal after initial period of sixty days has expired, yet such appeal has to be filed within reasonable time on the same analogy on which revision/review filed under Sections 66 and 67 respectively can be ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framing the original enactment when Sections 4 and 12 of the Limitation Act were applied to provisions contained in Chapter VI pertaining to return and payment of tax, assessment etc. nor after amendment when Chapter X was introduced in place of Chapter VI, which pertains to "Offences and Penalties", the legislature intended to apply Section 5 of the Limitation Act to Chapter VI of the Act of 2003. This reinforces the two conclusions that the Act of 2003 is intended to be a complete Code in itself and Section 5 of the Limitation Act has been excluded by necessary implication. 18. The Supreme Court in Hukumdev Narain Yadav Vs. Lalit narain Mishra - (1974) 2 SCC 133, has elaborated on the law as to when a particular legislation can be held to be a complete Code by itself, in the following terms:- "17. ... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was raised by the appellant that the application was time barred. The Munsif Court condoned the delay but dismissed the application on merits. The Appellate Court dismissed the appeal both on the ground of limitation as well as merits. The High Court held that the period under Article 137 of the Limitation Act, 1963 was applicable to the case. Therefore, it upheld the order passed by the Munsif Court and remanded the case to the court below for deciding the application afresh. The matter was then taken to the Supreme Court against the judgement of the High Court. Allowing the appeal, the Supreme Court in para 7 and 8 of the report held as under:- "7. In Section 8 of the Limitation Act there is reference to suits to enforce rights of pre-emption stating therein that nothing in Section 6 or Section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application. In Article 97 of the Schedule appended to the Limitation Act under the heading suits relating to miscellaneous matters there is reference to enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prefer an appeal even after the expiry of the period of limitation prescribed on showing sufficient cause. Similarly, the second proviso to Section 19(2) of the Act expressly provides for application of Section 5 of the Limitation Act to an appeal to be preferred under the said Section. Section 51A of the Act deals with preparation and revision of record-of-rights. Rule 26 of the Rules framed under the Act provides that every appeal under Section 51A of the Act is to be filed within one month from the date of passing of the order appealed against. The proviso to the said Rule states that an appeal may be admitted after the said period if the appellant satisfies that he had sufficient reasons for not preferring the appeal within the said period. Thus either Section 5 of the Limitation Act or its principles have been expressly and specifically incorporated in the various Sections afore-mentioned. In contrast although Section 8 of the Act prescribes period of limitation for applying to enforce pre-emption rights, it does not speak of application of Section 5 of the Limitation Act or its principles. If in the same Act, consciously and expressly, the Legislature has made provision for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case with full force both for proposition of law that the Act of 2003 in the present case is a self-contained complete code, as the Legislature specifically having incorporated the period of limitation and power of condonation on principles of Section 5 of the Limitation Act in various provisions of the Act but has consciously excluded the power of condonation of delay in Section 70 of the Act and also for the analogy that even after while amending Section 110 vide Notification dated 30th April 2005 substituting Chapter X by Chapter VII, it did not apply Section 5 of the Limitation Act to Chapter VI. 22. The Supreme Court in Fairgrowth Investments Ltd. Vs. The Custodian, (2004) 11 SCC 472, was dealing with a case where it was held that in view of Section 29(2) of the Limitation Act, 1963, the general rule, as far as Special and Local Acts are concerned, is that the specified provisions including Section 5 of the Limitation Act, 1963 will apply provided such Special or Local Act provides limitation different from that prescribed under the Limitation Act, 1963. It was further held that there is an additional requirement viz that the Special/Local Act does not expressly exclude the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Court in relation to Section 4(2) of the Act of 1992, held the Supreme Court. 23. We may in this connection usefully refer to the judgement of the Supreme Court in Commissioner of Customs and Central Excise Vs. Hongo India Private Limited, (2009) 5 SCC 791, which examined the scheme of the Central Excise Act, 1994, somewhat similar to the one which is contained in the Act of 2003. The question that fell for consideration before the Supreme Court in that case was whether the High Court had the 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) thereof, such reference application could be preferred within a period of 180 days of the date upon which the aggrieved party is served with notice of an order under Section 35-C of the Central Excise Act. Section 35-H of the Central Excise Act did not provide for extension of the period of limitation by condonation of delay for filing the reference application to the High Court. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 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 the said provision and the other related provisions following Singh Enterprises v. CCE [(2008) 3 SCC 70] concluded that: (Punjab Fibres Ltd. case [(2008) 3 SCC 73], SCC p. 75, para 8) "8. ... the High Court was justified in holding that there was no power for condonation of delay in filing reference application." 32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court." 24. The Supreme Court in Patel Brothers, supra, was dealing with the provisions of the Assam Value Added Tax Act, 2003. Section 81 thereof prescribed limitation period of sixty days within which a Revision Petition can be preferred. Section 80 thereof prescribed the period of limitation of sixty days for filing an appeal before the Appellate Tribunal against the order of the Appellate Authority under Section 79 and order passed by the authority lower in rank than a Deputy Commissioner with discretion to the Appellate Tribunal to admit an appeal filed after the expiry of sixty days if it is satisfied that the appellant had sufficient reason for not filing the appeal within the aforesaid time if it is filed within further period of 120 days. Similarly, Section 81 of the Assam Value Added Tax Act, 2003 provides remedy of revision against the order of the Appellate Tribunal or the Commissioner before the High Court, within sixty days after being notified of the impugned decision, nothing being said with regard to extended period within which the power of condonation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to 24 of the Limitation Act would apply. If the intention of the legislature was to make Section 5, or for that matter, other provisions of the Limitation Act applicable to the proceedings under the VAT Act, there was no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of the Limitation Act applicable to such proceedings, inasmuch as these two Sections would also have become applicable by virtue of Section 29(2) of the Limitation Act. It is, thus, clear 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. " 26. The analysis of the provisions discussed in earlier part of this judgement clearly shows that the Act of 2003, especially, Chapter VI with respect to remedy of appeal, revision and review, is a complete Code in itself. Wherever the legislature intended to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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