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TMI Blog2008 (12) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench in a group of cases in Commissioner of Central Excise v. M/s. Shruti Colorants Ltd. - 2009 (233) E.L.T. 171 (Bom.) (hereinafter referred to as Shruti Colorants Limited case for brevity sake), by a judgment and order dated 29th August, 2008 involving Appeals under Section 35G of the Central Excise Act, 1944 held that this Court is not empowered to condone the delay taking recourse to Section 5 of the Limitation Act, 1963. 4. Right at the outset, it is stated that the wordings in both Section 130 of Customs Act, 1962 and Section 35G of Central Excise Act, 1944 with regard to filing of appeals in this Court and the period of limitation of 180 days are identical. Section 130 of the Customs Act, 1962 130. Appeal to High Court - (1)....... (2) Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this subsection shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Customs or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for deciding whether an authority is a court or not are applied to the powers and functions of the appellate authority constituted under S.18 of the Rent Act, it becomes obvious that all the aforesaid essential trappings to constitute such an authority as a court are found to be present. In fact, Mr. Nariman learned Counsel for Respondent also fairly stated that these appellate authorities would be courts and would not be persona designata. But in his submission as they are not civil courts constituted and functioning under the Civil Procedure Code as such they are outside the sweep of S.29(2) of the Limitation Act. It is, therefore, necessary for us to turn to the aforesaid provision of the Limitation Act. It reads as under : "S. 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 S. 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 Ss.4 to 24 (inclusive) shall appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r limitation to a particular proceeding under the Limitation Act. (11) It is also obvious that once the aforesaid two conditions are satisfied S. 29(2) on its own force will get attracted to appeals filed before appellate authority under S. 18 of the Rent Act. When Section 29(2) applies to appeals u/s.18 of the Rent Act, for computing the period of limitation prescribed for appeals under that Section, all the provisions of Ss. 4 to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of S. 5 of the Limitation Act to appeals filed before appellate authority under S.18 of the Act. Consequently, all the legal requirements for applicability of S. 5 of the Limitation Act to such appeals in the light of S. 29(2) of Limitation Act can be said to have been satisfied. (15) After repealing of Indian Limitation Act, 1908 and its replacement by the present Limitation Act of 1963 a fundamental change was made in S.29(2). The present S. 29(2) as already extracted earlier clearly indicates that once the requisite conditions for its applicabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay stands condoned. Since the High Court had not dealt with the matter on merits, we decline to express any opinion on merits. The case stands remitted to the Division Bench for decision on merits. 8. The Division Bench in Shruti Colorants Limited case has strongly relied on the following two Supreme Court judgments while coming to the conclusion that while entertaining the Appeals under Section 35G of the Central Excise Act, this Court is not empowered to have recourse to Section 5 of the Limitation Act, 1963. The two judgments are (i) Commissioner of Customs v. Punjab Fibres Limited - 2008 (223) E.L.T. 337 (S.C.), (ii) Nasiruddin and Others v. Sita Ram Agarwal - AIR 2003 SC 1543. 9. In the matter before the Hon'ble Supreme Court in the case of Commissioner of Customs v. Punjab Fibres Limited, there was no argument with regard to the real scope of Section 29(2) of the Limitation Act, 1963. 10. In the above case of Commissioner of Customs v. Punjab Fibres Limited, the concept that Civil Court always has inherent right to condone the delay as per Section 5 of Limitation Act, unless expressly excluded as mentioned in Section 29(2) of Limitation Act, was not even argued. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60A. It would mean that S. 260A is not exhaustive of all the facets, aspects and matters with regard to the appeals under S. 260A. We have to look beyond S. 260A relating to appeals filed thereunder with regard to various aspects as provided in the CPC relating to appeals. How can it be said then that S. 260A forms a code complete in itself and is exhaustive of the matters relating to appeals filed under the said provision. Mr. S. K. Kakodkar, the senior counsel for the assessee contended that merely because the provision has been made in sub-s. (7) of S. 260A that the provisions of CPC relating to appeals are made applicable to appeals under S. 260A (as far as possible) would not mean that S. 260A is not a code in itself. According to him, instead of specifying the provisions relating to appeal as provided in the CPC, the legislature has incorporated the said provisions by enacting sub-s.(7). The submission of Mr. S. K. Kakodkar does not impress us. Rather it seems to us that the legislature did not intend to make the provision of S. 260A watertight. The exclusion of the provisions of ss. 4 to 24 of the Limitation Act as provided in S. 29(2) cannot be lightly inferred. Implied exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he delay. 15. Similarly, unfortunately even the Full Bench judgment of our Court in the case of Commissioner of Income Tax v. Velingkar Brothers was not brought to the notice of the above Division Bench which dealt with the case of Shruti Colorants case. In fact in that case the expression Appeal "shall" be filed within 120 days was interpreted to mean that it did not take away the Court's power to condone delay having recourse to Section 5 of the Limitation Act. (Emphasis supplied) 16. The Full Bench in the above judgment went on to hold that the exclusion of the provisions of Sections 4 to 24 of the Limitation Act as provided in Section 29(2) cannot be lightly inferred. The Court also held that implied exclusion is not to be readily inferred. 17. The Full Bench in the above judgment in Paragraph No.13 has again categorically reiterated that the legislature has used the words "shall be filed" in sub-section (2) means that the limitation for filing the appeal is as provided therein but that does not make Section 29(2) of the Limitation Act, 1963 inapplicable. 18. The Full Bench again observed that the High Court being the Superior Court, the power to condone the delay in filing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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