TMI Blog2022 (8) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... rmining the period of limitation only insofar as, and to the extent which, they are not expressly excluded by such special or local law. CGST Act is a special law which prescribes a specific period of limitation in Sections 107(1) and 107(4), and therefore, the provisions of CGST Act will apply. It is also to be noted that there is no provision under the Limitation Act dealing with the subject matter of appeal under the CGST Act. On due consideration of the scheme of the C.E. Act, the Hon'ble Supreme Court concluded that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a Court under Section 5 of the Limitation Act. It was also observed that it is the duty of the Court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act. In respect of an appeal to the High Court, the Legislature has not provided any specific time limit for entertainment of an appeal after expiry of the period of limitation if it is satisfied that there was sufficient cause for not filing the same within the period of limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute. 5. The appeal was rejected by an order dated 20.12.2019 passed by respondent No.3 on the ground of the same being barred by limitation. 6. Writ petition was filed assailing the said order dated 20.12.2019 passed by respondent No.3 with a further prayer to direct the respondent No.3 to hear the appeal preferred by the appellant on merits. 7. It will be appropriate to extract relevant provisions of Section 107 of the CGST Act : 107. Appeals to Appellate Authority.-(1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. (2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing for the respondents, submits that the CGST Act is a special law and same is a complete code by itself and the relevant provisions make it abundant clear that the provisions of Limitation Act are necessarily excluded, and therefore, the submission of Mr. Pandey that there is power to condone delay even beyond the period prescribed is entirely misplaced. He relies on the judgments of the Hon ble Supreme Court in the cases of Patel Brothers v. State of Assam, reported in (2017) 2 SCC 350, P. Radha Bai and Others v. P. Ashok Kumar and Another, reported in (2019) 13 SCC 445 and Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and Others, reported in (2008) 3 SCC 70. 11. We have considered the submissions of learned counsel for the parties and have perused the materials on record. 12. It will be appropriate to take note of Section 29(2) of the Limitation Act, which reads as follows: 29(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 pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited Another , reported in (2009) 5 SCC 791. At paragraph 35, it was observed as follows: 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 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 case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal. 19. Unamended Section 35-H of the C.E. Act 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 C.E. Act. There was no provision to extend the period of limitation for filing the application to the High Court beyond the said period and to condone the delay. Pertinently, under the scheme of the C.E. Act itself, in case of appeal to the Commissioner under Section 35 of the Act, which should be 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 empowers the revisional authority to condone the delay for a further period of 90 days. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 23. In P. Radha Bai (Supra), the inquiry conducted by the Hon'ble Supreme Court was whether the text or the scheme and object of the Arbitration and Conciliation Act, 1996 (for short, the Act of 1996) excludes the application of Section 17 of the Limitation Act while determining the limitation period as prescribed under Section 34(3) of the Act of 1996. Section 34(3) of the Act of 1996, reads as follows : 34. Application for setting aside arbitral award- (1) -(2) * * * (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the Arbitral Tribunal: Provided that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, admittedly, the appeal was filed beyond the total 60 days period specified in terms of Section 31 of the AP VAT Act. The Hon'ble Supreme Court observed that the AP VAT Act is a special legislation within the meaning of Section 29(2) of the Limitation Act and, therefore, the prescription with regard to the limitation has binding effect and the same has to be followed regard being had to its mandatory nature. It was also explained that the prescription of limitation in the case at hand, when the statute commands that the Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It was also observed that there is a statutory command by the legislation as regards limitation and there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of public policy. It is in that context, the Hon'ble Supreme Court observed that if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the AP VAT Act, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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