9911796707
TMI Blog2004 (5) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... application was filed in respect of an order of the Appellate Tribunal passed on 17-12-2001 and served on the petitioner on 27-3-2002. The impugned order whereby the petitioner's reference application under Section 45(1) of the DST Act was rejected is challenged on the ground that delay in filing the reference application ought to have been cordoned upon an application of the provisions of Section 5 of the Limitation Act, 1963. The Sales Tax Appellate Tribunal held that the DST Act was a specific law and which made special provisions for limitation, different from that provided by the Limitation Act and, therefore, the applicability of Section 5 of the Limitation Act was excluded. And, as a consequence of this conclusion, it was held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of such order. In case the application for reference is not filed within this period, then, in terms of the proviso to Section 45(1) of the DST Act, the Appellate Tribunal may, if it is satisfied that the person seeking the reference was prevented by sufficient cause from presenting the application within the said period of 60 days, allow the application to be presented within a further period "not exceeding thirty days". Since this is the provision which is in question, it is set out herein below :- "45. Statement of case to the High Court Within - (1) passed by the Appellate Tribunal sixty days from the date of an order under sub-section (6) of section 43, the dealer or the Commissioner may, by application in writing, and acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 962 reads as under :- "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 period of thirty days." The proviso to Section 35 (1) of the Central Excise Act, 1944 reads as under :- "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 period of thirty days." 4. The Division Beach of this Court, in both the cases referred to above, held that these provisos specifically excluded the operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1 SCC 392; (xiii) Kaushalya Rani v. Gopal Singh: (1964) 4 SCR 982; and (xiv) India House v. Kishan N. Lalwani: (2003) 9 SCC 393. 5. In M.R. Tobacco (supra), this Court observed as under : "15. ...........If one were to compare the provisions of section 5 of the Limitation Act, 1963 and the proviso to section 35 (1) of the said Act, one would find that they are essentially the same in that they both permit the presentation of an appeal beyond the limitation period if the appellant is able to satisfy the appellate authority that the appellant was prevented by sufficient cause from presenting the appeal within the prescribed period of limitation. The difference in the two provisions lies in the fact that whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay or to entertain the appeal itself." 6. Thus, it is clear that the issue raised in the present writ petition is no more res integra and is fully covered by our decisions in the case of Delta Impex (supra) and M/s. M.R. Tobacco (supra) which considered the parallel and analogous provisions contained in the Customs Act, 1962 and the Central Excise Act, 1944 respectively. 7. In fact, the proviso to Section 45(1) of the DST Act is even more restrictive than the Provisos to Section 128 (1) and Section 35 (1) of the Customs Act, 1962 and the Central Excise Act, 1944 respectively. This is so because the words contained in those two Acts are "allow it to be presented within a period of thirty days", whereas the words used in the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 45(1) and the extended period of thirty days under the proviso to Section 45(1) of the DST Act. Sub-section 2 of Section 62 of the DST Act does not, in any way, dilute the restriction of providing a maximum of 30 days within which the application may be presented. It only provides a method of calculating those 30 days. The learned Counsel for the petitioner contended that looking to the scheme of the Act, there is no express exclusion of the provisions of Section 5 of the Limitation Act, 1963. We are unable to agree with this contention in view of the discussion above and the detailed consideration of analogous provisions in our aforesaid decisions in the cases of M/s. Delta Impex (supra) and M/s. M.R. Tobacco (supra). 9. In these circum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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