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TMI Blog2025 (2) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... error of law in rejecting the application for rectification on the ground of limitation by not following the principles laid down by the Supreme Court in the case of SUNITADEVI SINGHANIA HOSPITAL TRUST v/s UNION OF INDIA reported in 2009 (233) ELT 295 (SC)." 3. Brief facts of the case are as under:- 3.1 The appellant is a partnership firm engaged in undertaking various processes on textile fabrics at the relevant time. During the period from 01.09.1998 to 14.10.1998, under the Compounded Levy Scheme, as per Section 3A of the Central Excise Act, 1944, excise duty was to be paid on the basis of number of chambers installed in a machine called a Hot AIR Stenter, whereas excise duties were not to be paid on the actual production of goods or on the value of the goods at the rate of 1,50,000/- per chamber per month at the relevant time. 3.2 During the course of search and survey by the Central Excise Officers at the factory premises of the appellant on 14.10.1998, certain documents like 11 kachcha grey reports, a pocket diary etc., were seized under a pachnama and statements of various persons were recorded. Thereafter, show-cause notice dated 12.04.1999 was issued on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (SC), so as to persuade the Tribunal to condone the delay and contended that CESTAT has inherent powers to recall the order, if sufficient cause is shown. The Tribunal, however, considering the provision of Section 35C (2) of the Central Excise Act, 1944, passed following order rejecting the application to condone the delay:- "5. It can be seen from the above reproduced provisions that there is a time limit fixed by the statute for filing of application for rectification of mistake apparent from the record. In this case before us, there is undisputedly a delay of 178 days in filing of application before the bench. On careful perusal of the provisions of Section 35C of Central Excise Act, 1944, we find that we do not have powers to condone the delay in filing application for rectification of mistake. 6. As regards the judgment relied upon by the learned counsel, in the case of Sunitadevi Singhania Hospital Trust we, with 'respect would like to reproduce Para 30 wherein their lordships have held: "30. For the reasons aforementioned, we in exercise of our jurisdiction under Article 142 of the Constitution of India set aside the impugned judgment with a direction to the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 of 2006 there against before the High Court which had been allowed by an order dated 11.1.2007. 17. From the Tribunal which is the final Court of fact, an assessee is entitled to obtain a judgment wherein all its contentions have been considered. If what has been contended before us by the appellants, namely, it indeed had complied with all the conditions laid down in the Notification are correct and, thus, was not liable to pay any redemption fine or penalty, the Tribunal was bound to consider the said contention. 18. Apparently, learned Tribunal only considered the factual matrix involved in the case of M/s Miraj Medical Centre W. Hospital and not the factual aspect of the matter involving factual matrix. Appellants' case had purported to have been determined on the question of law without taking into consideration the question whether the law so laid down by the Tribunal is applicable to the fact of the appellants' case or not. 19. It is true that the period of limitation specified in terms of Sub-Section (2) of Section 129 (B) of the Customs Act is required to be observed but the Tribunal failed to notice that it has inherent power of recalling its own orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the award was filed before the Labour Court after one month of the publication of the award. 10. In view of this Court's decision in Grindlays Bank such jurisdiction could be exercised by the Labour Court within a limited time frame, namely, within thirty days from the date of publication of the award. Once an award becomes enforceable in terms of Section 17-A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the gazette, the same having become enforceable, the Labour Court would become functus officio". 24. Yet again in Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors. [2008 (8) SCALE 242], this Court held: "17. What matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law. Even in the absence of any express provision having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake. 5.1 It was further submitted that the Tribunal was bound by the statutory provisions and has no power to condone the delay beyond the time limit prescribed therein. It was submitted that the Hon'ble Apex Court in the case of Sunitadevi Singhania Hospital Trust (supra), exercised the jurisdiction under Article 142 of the Constitution of India to do the justice and the observations made by the Hon'ble Apex Court were required to be appreciated in the facts of the case before it, more particularly, when there is no mistake committed by the Tribunal in not noticing the facts involved in the appeal, which would attract the ancillary and incidental powers of the Tribunal necessary to discharge its function effectively for the purpose of doing justice between the parties. It was submitted that the Tribunal has considered the decision of the Commissioner while upholding the same, and the Commissioner in turn has considered the aspect of supply of the relied upon documents, which is referred in the order of the Tribunal. It was submitted that even otherwise, prima facie, there is no error apparent on record in the order sought to be rectified by the appellant. 6. Having heard the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 14 days without there being any explanation showing or providing cause for such delay assuming for a while that the time spent by the appellant from 09.09.2008 till 22.07.2010 is excluded. 8. The Hon'ble Apex Court in the case of Commissioner of Customs and Central Excise versus Hongo India Private Limited and another reported in (2009) 5 SCC 791, while interpreting the provisions of Sections 35, 35B, 35EE, 35G and 35 H of the Central Excise Act, 1944, held that the language used in the provisions was clear that the Legislature intended the Appellate Authority to entertain appeal by condoning delay up to 30 days and as per unamended provision of Section 35H, sufficient time of 180 days was prescribed for filing an appeal and revision, and therefore, it was held that the Section 5 of Limitation Act, 1963 excluded in absence of laws condoning the delay by showing sufficient cause after prescribed period. It was held by the Hon'ble Apex Court as under:- "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, 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 exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. 36. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law 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 Act. 37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the "reference application" filed by the Commissioner under unamended Section 35H (1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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