TMI Blog2005 (10) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 ('the Act'). Against the export obligation for the goods in tended to be cleared for the export he was supposed to file the proof having exported the goods within 180 days from the date of export. 3. The petitioner claims to have cleared five consignments for export but has neither submitted the proof of export within prescribed period of 180 days of export nor could he submit the same during the pendency of the adjudication proceeding, which culminated in orders in Original dated 20-1-2002 and dated 28-3-2003, served on the petitioner on 2-1-2003 and 31-3-2003 respectively. 4. The petitioner, for the reasons stated in the petition, details of which are not necessary, could not file appeals against the aforesaid orders before the Commissioner of Central Appeals (Appeals) (the Appellate Authority) within a stipulated period of 30 days. The delayed appeals were filed. In one of the appeals, there was a delay of about 202 days; whereas in another appeal, there was delay of about 194 days. The Appellate Authority not being empowered to condone delay beyond the period of 30 days, excluding the period prescribed for filing appeal, refused to condone dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter" at the end of the proviso to section 35 of the Act. He thus submits, we should read power in favour of the Appellate Authority to condone delay. 10. Alternatively, learned Counsel for the petitioner sought to contend that looking to the powers of this Court under Article 226 of the Constitution, this Court can condone delay in filing appeal in exercise of its writ jurisdiction. He thus submits that considering the peculiar facts of the case delay should be condoned and appeal should be remitted back to the first Appellate Authority for consideration on merits. He placed reliance on the judgment of the Supreme Court in the case of Union of India v. Kirloskar Pneumatic Company - 1996 (84) E.L.T. 401 (S.C.). 1 10. On the other hand, Shri Rana, learned senior Counsel appearing for the Revenue, opposed the contentions of the petitioner. He submits that there is no power to condone delay with the first Appellate Authority beyond the prescribed. He submits, there is no justification in reading powers in favour of the authorities under the Act. He further submits that there is no justification in indirectly seeking application of provisions of the Limitation Act to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings of the learned Single Judge. In the appeal before the Apex Court it was contended that section 29(2) of the Limitation Act makes the provisions of section 5 of the Limitation Act applicable to the special laws like 1996 Act, since 1996 Act itself did not expressly exclude its applicability and that there was sufficient cause for the delay in filing the application under section 34. The said contention was opposed by the respondents contending that section 34 plainly and expressly excluded the operation of section 5 of the Limitation Act. The Apex Court after considering the scope of section 29(2) and the applicability of the provisions contained in sections 4 to 24 of the Limitation Act, and after reviewing the case law, concluded that the history and scheme of 1996 Act supports the conclusion that the time-limit prescribed under section 34 to challenge the award is absolute and unextendable by the court under section 5 of the Limitation Act. The Court after referring to the Arbitration and Conciliation Bill, 1995, which preceded the 1996 Act, noted that one of its main objectives was the need to minimise the supervisory role of courts in the arbitral process. The Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted above, the non-applicability of section 5 of the Limitation Act to proceedings under section 8 of the Act is certain and sufficiently clear. section 29(2) of the Limitation Act as to the express exclusion of section 5 of the Limitation Act and the specific period of limitation prescribed under section 8 of the Act with out providing for either extension of time or application of section 5 of the Limitation Act or its principles can be read together harmoniously. Such reading does not lead to any absurdity or unworkability of frustrating the object of the Act. At any rate, in the light of three-Judge Bench decision of this Court in Hukumdev Narain Yadav case (1974) 2 SCC 133 and subsequently followed in Anwari Basavaraj Patil case (1993) 1 SCC 636 even though special or local law does not state in so many words expressly that section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the Scheme of the Act and having regard to various provisions such express exclusion could be gathered." 16. In the case of Kirtoskar Penumatic Company (cited supra), the Apex Court was considering the scope of jurisdiction under Articles 226 and 227 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifically prescribed for filing of the returns, appeals, revisions etc. The submissions made by the learned Counsel for petitioner on both counts are devoid of any substance. 19. This Court in the case of Navinon Limited v. Union of India - 2005 (1) Bom. C.R. 58, to which one of us (Devadhar, J.) was a party, had an occasion to consider the identical question as to the applicability of the Limitation vis-a-vis power to condone delay. The Division Bench of this Court held that Limitation Act applies only to Courts. Such Court may not necessarily be constituted under Code of Civil Procedure or Code of Criminal Procedure. The forum that functions as Court or has trapping of Courts would be a Court for the purposes of its applicability. This judgment further lays down that the Commissioner of Central Excise has no jurisdiction to condone delay beyond 60 days in filing appeal. If that be so, the condonation of delay was rightly refused by the first appellate authority for want of powers to condone. 20. It is needless to mention that if the order passed by the appellate authority under the Central Excise Act cannot be faulted, then the impugned order cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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