TMI Blog2004 (4) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and after considering such reply, the Deputy Commissioner of Central Excise passed an Order-in-Original No. 61/2002, dated 17-5-2002 confirming the duty demanded. 2.This is background leading to the main issue involved in this writ petition. The issue arises in respect of the appeal filed by the petitioner against the said Order-in-Original dated 17-5-2002 which was filed on 28-7-2002. Section 35 of the Central Excise Act, 1944 (hereinafter referred to as "the said Act") provides for appeals to the Commissioner (Appeals) and reads as under : "Appeals to Commissioner (Appeals).35. Any person aggrieved by any decision or order passed under this Act by a(1) Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) "within sixty days" from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y even beyond the period of thirty (30) days permitted by the proviso to Section 35(1) of the said Act. This submission is made on the premise that the delay could be condoned under Section 5 of the Limitation Act, 1963, read with Section 29(2) thereof. To appreciate this submission it would be necessary to refer to the said provisions. Section 29(2) of the Limitation Act, 1963 reads as under: Where any special or local law"(2) 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 insofar as, and to the extent to which, they are not expressly excluded by such special or local laws." And, Section 5 of the Limitation Act, 1963 is as follows : Extension of Prescribed Period in Certain"5. Cases. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Supreme Court were discussed. Those included Collector of C.E., Chandigarh v. Doaba Cooperative Sugar Miles, 1988 (37) E.L.T. 478 (S.C.); Miles India Limited v. Assistant Collector of Customs; 1987 (30) E.L.T. 641 (S.C.); Mohd. Ashfaq v. State Transport Appellate Tribunal, AIR 1976 SC 2161; Commissioner of Sales Tax v. Parson Tools Plant, 35 STC 413; Smt. Ujjam Bai v. State of U.P., 1963 (1) SCR 778; Jagannath Prasad v. State of U.P., 1963 (2) SCR 850. Apart from holding that "taxing authorities are not "courts" and, therefore, Section 5 of the Limitation Act, 1963 cannot be invoked", this Court, in Delta Impex (supra), specifically held in paragraphs 12, 13 14 thereof as under : The Customs Act, 1962 itself is a"12. complete Code. Reading various chapters and various sections thereof, it is very clear that it is an Act independent of other provisions. It provides for search, seizure, arrest, confiscation of goods, conveyance, imposition of penalties, settlement of cases, appeals including the appeal to the Supreme Court and hearing before the Supreme Court, period of limitation, offences and prosecution. Thus, it is an independent Act. The Court is required to examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Delta Impex (supra). However, the learned Counsel for the petitioner, when presented with the views taken by us in the case of Delta Impex (supra), contended that we ought to keep in mind the decisions of Supreme Court in the following cases: (i) Lalji Haridas v. State of Maharashtra and Anr, 1964 (6) SCR 700; (ii) Commissioner of Sales Tax, U.P. v. Madan Lal Das and Sons, (1976) 4 SCC 464; (iii) Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133; (iv) Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5; and (v) Union of India v. Popular Construction Company, (2001) 8 SCC 470. 9.Let us consider these cases one by one. In the case of Lalji Haridas (supra), the question which essentially came up for consideration was whether an Income-Tax Officer under the Income Tax Act, 1922 was a "Court" within the meaning of Clause (b) in sub-section 1 of Section 195 of the Code of Criminal Procedure. The majority opinion of the Constitution Bench which was delivered by Gajendragadkar, CJ, held that the proceedings before the Income Tax Officer would be regarded as proceedings in any Court for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t answers to the description of a special or local law. According to sub-section (2) of Section 29 of the Limitation Act, reproduced above, for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in Section 12(2), inter alia, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. There is nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2) of the Limitation Act for determining the period of limitation prescribed for revision application. The conclusion would, therefore, follow that the provisions of Section 12(2) of the Limitation Act of 1963 can be relied upon in computing the period of limitation prescribed for filing a revision petition (underliningunder Section 10 of the U.P. Sales Tax Act." added) This decision also does not come to the aid of the petitioner. The Supreme Court permitted reliance upon Section 12(2) of the Limitation Act, 1963 because there was "nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2)". But, in the present case we have held that application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case whether 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 excluded their operation. The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, 82 or 117. It will be seen that Section 81 is not the only section mentioned in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that Act." (underlining added) We fail to see how this decision of the Supreme Court advances the cause of the petitioner. On the contrary, it entirely supports the view we have taken. On an examination of the provisions of Section 35 of the said Act, it is clear that the provisions of the Limitation Act are necessarily excluded, at least beyond the said thirty (30) day period. As such the benefits conferred in the Limitation Act, 1963 cannot be called in aid to supplement the provisions of the said Act. The Supreme Court has made it clear 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 exclude their operation. Having examined the provisions of Section 35 of the said Act we have come to the conclusion that operation of Section 5 of the Limitation Act, 1963 is excluded to the extent indicated above. 12.In the case of Mukri Gopalan (supra), the short question before the Supreme Court was "whether the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(2) of the Limitation Act and consequently Section 5 of the Limitation Act would also be applicable to such proceedings. Appellate authority will have ample jurisdiction to consider the question whether delay in filing such appeals could be condoned on sufficient cause being made out by the applicant concerned for the delay in filing such appeals." In so coming to the conclusion, the Supreme Court, with regard to the provisions of Section 29(2) of the Limitation Act, observed as under: "A mere look at the aforesaid provision shows for its applicability to the facts of a given case and for importing the machinery of the provisions containing Sections 4 to 24 of the Limitation Act the following two requirements have to be satisfied by the authority invoking the said provision. There must be a provision for period of(i) limitation under any special or local law in connection with any suit, appeal or application. The said prescription of period of(ii) limitation under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act." 13.In the facts of that case, the Supreme Court held that there was no dispute that the Kerala Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he U.P. Sales Tax Act which provided that a revision application had to be made within one year from the date of service of order but that the revising authority could, on proof of sufficient cause, entertain an application within a further period of six months. In view of this provision, it was held that this was an express bar to the applicability of Section 14(2) of the Limitation Act. As regards the decision of the Supreme Court in CST v. Madan Lal Das Sons (supra), the Court observed that it was a direct decision on the point that Section 29(2) of the Limitation Act, 1963 would be applicable for computing periods of limitation prescribed by a local or special law, even though the authority before which such proceeding may be filed under the local or special law may not be a full-fledged civil Court. But, that comes into the picture only if there is no exclusion. The issue of whether the Commissioner (Appeals) is or is not a Court is not relevant in the present case or for that matter in any case where there is an express exclusion. 15.Finally, we consider the decision of the Supreme Court in the case of Union of India v. Popular Construction Company (supra). The question t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 34 merely provided for a period within which the Court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because 'mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5." With regard to the words "but not thereafter" used in the proviso, the Supreme Court held that these amounted to an express exclusion within the meaning of Section 29(2) of the Limitation Act and was, therefore, a complete bar to the application of Section 5 of the Limitation Act. In this context, the Court observed as under: "Parliament did not need to go further. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result." The question that arise at this juncture is, what if the words "But not thereafter" had not been used? Could the proviso still amount to an express exclusion as contemplated in Section 29(2) of the Limitation Act, 1963? From what is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, held that — "... the time limit of sixty days laid down in sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia House v. Kishan N. Lahwani, (2003) 9 SCC 393 wherein similar provisions of Section 25 of the Tamil Nadu Buildings (Lease Rent Control) Act, 1960 came to be considered. Sub-section 25(2) of the said Tamil Nadu Act provides that every application to the High Court for the exercise of its revisional power shall be preferred within one month from he date on which the impugned order is communicated to the applicant: "provided that the High Court may, in its discretion, allow further time not exceeding one month for the filing of any such application, if it is satisfied that the applicant had sufficient cause for not preferring the application within the time specified" With regard to the applicability of Section 5 of the Limitation Act, 1963, in the wake of the aforesaid proviso to Section 25(2) of the said Tamil Nadu Act, the Supreme Court held as under: So far as the applicability of Section 5"11. of the Limitation Act is concerned, the power of the Court to extend the prescribed period of limitation on the ground of availability of sufficient cause for not preferring the appeal within the prescribed period, within the meaning of Section 5 of the Limitation Act, stands cir ..... 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