TMI Blog2022 (3) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Act, within the meaning of the expression expressly excluded contained in the final limb of Section 29(2) of the Act of 1963. However, the expression expressly excluded has to be reasonably understood in the sense that if, by necessary implication, there is exclusion of any of the provisions contained in Sections 4 to 24 (inclusive) of the Act of 1963 in the special or local law, such implied exclusion would also fall within the fold of the expression expressly excluded. For such purpose, the principle embodied in the Latin maxim expressio unios est exclusio alterius may be referred to since it is a cardinal rule that when one or a few matters out of several possible are exclusively referred to, the obvious necessary implication is that the others have been excluded. There is no express exclusion within the meaning of the relevant expression in Section 29(2) of the Act of 1963 which operates on or in respect of Section 70 of the said Act pertaining to petitions for revision carried to this Court. Though it is wholly unnecessary to surmise why there is no express inclusion or express exclusion of the power to condone the delay in Section 70 of the said Act, it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT: (per the Hon ble, the Chief Justice) The matter calls for a fresh consideration on rebound. 2. The petition for revision of an appellate order dated January 23, 2015 passed by the Meghalaya Board of Revenue was rejected on the ground that it was barred by limitation. Such order of this Court of January 28, 2020 was set aside by the Supreme Court by its order of December 10, 2021 and the petition for revision along with the application for condonation of delay were restored to the board of this Court for being considered afresh. 3. The petitioner manufactures a product that is generically known as rusk. Rusk is a form of toasted bread that, unlike untoasted bread which is soft, is crunchy and it is consumed more as a biscuit than as bread or even toasted bread. Bread is exempted from value added tax in the State. The petitioner passed off its product as a form of bread and took advantage of the exemption. Upon the Department regarding rusk as different from bread and seeking to impose VAT under the miscellaneous entry which pertains to unspecified products, the petitioner challenged the same. At the end of the adjudication at three levels before the Department and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such, for the purpose of any order pertaining to VAT or the challenge thereto, it is impermissible to refer to or rely upon any other statute as the said Act is a complete code by itself. 7. In the same vein, the State contends that when comparable provisions in the same statute, particularly covered under the same chapter, confer the authority on a relevant forum to condone the delay in receiving a matter and other provisions do not confer such authority, the only inference to be drawn is that in the absence of the authority to condone the delay being conferred, such authority is deemed not to vest in the relevant forum. 8. The State also places Section 110 of the said Act, which is found in Chapter XI of the statute covering miscellaneous matters, to suggest that since such provision specifically refers to the applicability of Sections 4 and 12 of the Limitation Act, 1963 in certain cases, the other provisions of the Act of 1963 are deemed to have been expressly excluded. 9. Without prejudice to the State s contention that this Court has no inherent authority to condone the delay, as in the present case, as no provision in such regard exists in the said Act, the State as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code that pertain to fundamental tenets of public policy may not be inferred to have been excluded. Indeed, it may not be possible to expressly exclude such principles of public policy. 13. Since the State has referred to the appellate, review and revisional provisions contained in Chapter VII of the said Act, Sections 65 to 70 of the Act, in their material parts, may be noticed: 65. Appeal against assessment (1) Any dealer may, in the prescribed manner, appeal to the prescribed authority against any assessment within forty-five days or such further period as may be allowed by the said authority for cause shown to his satisfaction from the receipt of a notice of demand in respect thereof: Provided that no appeal shall be entertained by the said authority unless he is satisfied that such amount of tax, penalty or interest, as the case may be, as the appellant may admit to be due from him and such percentage of the disputed tax, as may be prescribed, has been paid. (2) ... (3) ... (4) ... 66. Suo motu revision and revision by Commissioner upon application (1) Subject to such rules as may be made and for reasons to be recorded in writing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent to the proceeding. (2) ... (3) ... (4) ... 14. Section 110 of the Act from Chapter XI thereof has also to be seen since the State submits that it throws some light on the matter which has arisen for consideration: 110. Application of Section 4 and 12 of Limitation Act In computing the period of limitation under [Chapter VI]*, the provisions of Sections 4 and 12 of the Limitation Act, 1963 shall, so far as may be, apply. 15. The State next refers to a judgment reported at ( 2017) 2 SCC 350 (Patel Brothers v. State of Assam) and the reliance placed therein on the dictum in the judgment reported at (2009) 5 SCC 791 (Commr. of Customs and Central Excise v. Hongo India (P) Ltd.). In Patel Brothers, Section 81 of the Assam Value Added Tax Act, 2003, fell for consideration as to whether such provision permitted a belated petition for revision to be entertained by condoning the delay. The Supreme Court referred to Section 29 of the Act of 1963 and held that even in a case where the special law does not expressly exclude the power of an adjudicating authority to condone any delay or the nature of the subject-matter and the scheme of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Suo motu provision of revisional power is also provided to the Commissioner within 5 years. Thus, the intendment is not to exclude the Limitation Act. We condone the delay in filing of revision. 17. For the purpose of assessing the applicability of Section 5 of the Act of 1963 in the present context, Section 29(2) of the Act of 1963 is of paramount importance: 29. Savings. (1) ... (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. (3) ... (4) ... 18. Section 29(2) of the Act of 1963 has several components. For a start, the provisions of any special or local law should prescribe a period of limitation different from the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause shown for the delay. Section 66 of the said Act does not indicate any time limit, though subsection (2) thereof permits rules to be prescribed pertaining to the operation of Section 66 of the said Act. Again, Section 67 of the said Act is on similar lines and does not prescribe any time, though it contemplates rules being made under such provision. 22. Section 68 of the said Act sets a time-limit of 60 days for the High Court to receive an appeal, but confers authority on the High Court to entertain an appeal beyond such period upon sufficient cause for the delay being shown to the satisfaction of the High Court. There is no outer limit fixed for the authority to condone the delay to be exercised. 23. Section 69 of the said Act pertains to appeals to the Appellate Tribunal and permits an appeal to be entertained after the period of the stipulated 60 days if sufficient cause for the delay is shown, but fixes an outer time-limit of one year from the date of being served with the notice of the decision impugned. In other words, by the prescription contained in Section 69(2) of the said Act, however genuine the cause may be for the delay, there is a jurisdictional bar for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be entertained at all. Such exclusion cannot be easily read into a provision and the word expressly used in Section 29(2) of the Act of 1963 precludes such inference being drawn. 26. It is evident from the other provisions contained in Chapter VII of the said Act pertaining to appeals and reviews at different levels that either the time-limits have been indicated or the power to condone has been left to the discretion of the relevant forum without any outer limit of time being stipulated; or, rules have been permitted to be prescribed under the relevant provision. In the solitary case where a power to condone the delay has been conferred and an outer limit of time for the exercise thereof has been stipulated, as in Section 69 of the Act, both the power to condone and the outer time limit for a party to seek condonation have been expressly indicated. 27. Quite plainly, in the scheme of Chapter VII of the said Act, notwithstanding such chapter being the entire repository of the right to challenge any order passed under the said Act, there does not appear to be any express exclusion of the power to condone the delay pertaining to revision under Section 70 of the Act. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the statute pertaining to VAT in the State, notwithstanding such enactment being a complete code pertaining to all VAT matters, Section 70 of the said Act cannot be said to have expressly excluded the authority of the High Court to condone any delay in the institution of a petition for revision thereunder. 33. It is now to be assessed as to whether sufficient cause has been shown by the petitioner in preferring the petition for revision after the seemingly inordinate delay. As to the sufficiency of the cause of the delay, it must be remembered that the Court or the relevant forum is conferred the authority to be subjectively satisfied as to the cause for the delay and no objective criteria have been specified in such regard. It must also be said in the same breath that the element of subjectivity that is available must be guided by judicially established principles and the subjectivity cannot depend on the day of the week that the matter falls for consideration or the weather outside or like irrelevant considerations. 34. Ordinarily, Courts are slow in shutting out a party on the prescription of limitation unless negligence on the part of the party or the lack of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... described as a glass half-full, the conduct of the petitioner in approaching the Board of Revenue, erroneous as it was, may not be seen as not being bona fide. After all, the petitioner has always attempted to contend that its rusk product ought to be regarded as a form of bread and it diligently pursued the matter before the lower revisional and appellate fora. In such light, there appears to be sufficient cause in the petitioner not having brought this revision earlier than it did and this Court is satisfied as to the sufficiency of the reasons proffered by the petitioner in such regard. 38. The matter, therefore, progresses to the business end for consideration on merits and as to whether the exemption applicable to bread in the State may be availed of by the petitioner for its manufacture of rusk which may contain the same material that goes into bread. 39. At first blush, the argument put forth by the petitioner appears to be attractive; after all, it is nobody s case that the petitioner buys bread from the market and manufactures rusk therefrom. According to the petitioner, the activity conducted by the petitioner is as indicated at page 9 of the present petition: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt refused to presume that the legislature had intended the word bread to imply the article of food going by that description in European countries and held that roti, shirmal, parata and chapathi and the like in this country had to be seen to be included within the meaning of the word bread in the relevant entry. Similarly, in Alladi Venkateswarlu, the Court applied the dictum in the judgment reported at (1961) 2 SCR 14 (Tungabhadra Industries Ltd. v. C.T.O.) to hold that merely because chemical changes had been brought about in parched rice and puffed rice, it would not imply that such varieties cease to be rice within the meaning of the relevant entry. In Mamta Surgical, the issue was somewhat different, and, as such, the dictum therein may not be applicable to the present case. It was the admitted position in that case that the appellant before the Supreme Court carried on business of procuring cotton and transforming it into surgical cotton. Apart from the Supreme Court holding that cotton and surgical cotton were completely different products, it is evident that the raw material procured by the assessee in that case was subjected to a manufacturing process to be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sk and never may the twain be equated. Accordingly, there is no flaw found in the appellate judgment and order under revision and no ground seen for interfering therewith. 45. Before parting, a couple of points of order need to be recorded. The petitioner demonstrates, by referring to the impugned judgment, that the petitioner had relied on several Supreme Court judgments but the Tribunal may not have referred to such judgments, whether in a sweeping manner or individually. It is possible that with judgments being available online these days, little discretion is exercised in trying to place what is appropriate and refraining from relying on the judgments that are irrelevant in the context. However, when precedents are cited before it, it is the bounden duty of an adjudicating authority to consider the same and, if irrelevant, indicate briefly, say in a sentence, as to why they may be irrelevant. The judgments cited cannot be ignored, particularly if such judgments are binding on the relevant forum. The second aspect is the use of the expression inclined to concur while referring to a judgment of the Supreme Court. No authority in this country has to condescend to concur with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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