M/s Sheetal Enterprises v. Union of India & Ors.

Judgment

1. The question which arises in this case is whether the Commissioner of Central Excise (Appeals) has a power to condone delay beyond 60 days. TheTheThe Facts: Facts: Facts:

2. The facts giving rise to the present petition in nutshell are as under: . The petitioner is a manufacturer of industrial lubricants, availing benefit Nil 14 effective export Rule 13 Rule Central Excise (No.2) Rules, 2001 (‘the Rules’) framed Central Excise Act, 1944 (‘the Act’)Against export obligation intended cleared export (2) supposed to file the proof having exported the goods within 180 days from the date of export.

3. The petitioner claims to have cleared five consignments export neither submitted export within prescribed period 180 export submit during pendency adjudication proceeding, culminated orders Original

20.1.2002 dated 28.3.2003, served on the petitioner on

2.1.2003 and 31.3.2003 respectively.

4. The petitioner, for the reasons stated in petition, details necessary, appeals against aforesaid orders before Commissioner Central Appeals (Appeals) (the Appellate Authority) within a stipulated period 30 days. The delayed appeals filed. In appeals, a 202 days; whereas another appeal; 194 days. The Appellate Authority empowered condone beyond period 30 days, excluding period prescribed filing appeal, refused to condone delay vide its order dated 30th January, 2004.

5. Not being satisfied with the aforesaid order refusing condone delay, petitioner carried (3) revision application Government India revision application rejected result revisional authority upheld the order of the Appellate Authority refusing to condone delay beyond the period of 30 days.

6. Being aggrieved by the aforesaid order of Government India, petitioner invoked jurisdiction Court Article 226 Constitution India. Petitioner details petition explaining various difficulties preferring appeals within prescribed period limitation. Petitioner produced certain documentary evidence to explain delay caused in filing appeals.

7. However, petitioner could not submit proof export original within prescribed period respective authorities suffered adverse orders. Petitioner appeals against orders before Appellate Authority within stipulated period 30 delayed appeal 282 another 194 days, contending orders served

2.12.2003. The appellate authority empowered to condone delay beyond 30 days from the date of export, rejected these appeals. (4)

8. On being noticed, the respondents appeared and filed their counter affidavits and opposed the reliefs claimed in the petition. . With the aforesaid rival pleadings on record, the petition was heard for admission.

Learned Counsel appearing for the petitioner submitted though appeals preferred petitioner section 35 Central Excise Act (‘the Act’ short) barred limitation, still, He prayer condonation rejected 1st Appellate Authority. contends impugned orders passed Appellate Authority refusing condone devoid merits liable aside. In support contention learned Counsel petitioner relied judgment Court Union Union Union India India India vs. vs. vs. Popular Popular Popular Construction Construction Construction Co. Co. Co. (2001) (2001) (2001) 8 8 8 SCC SCC SCC

470470470. He support contend condone favour "but Appellate Authority absence thereafter" proviso section 35 Act. He submits, should read power in favour of the Appellate Authority to condone delay.

10. Alternatively, learned Counsel for the (5) petitioner sought contend looking powers Court under Article 226 Constitution, Court condone filing appeal exercise jurisdiction. submits considering peculiar He should condoned appeal should remitted Appellate Authority consideration merits. He placed reliance judgment Supreme Court of India vs. Kirloskar Pneumatic Company 1996 UnionUnionUnion of India vs. Kirloskar Pneumatic Company 1996 of India vs. Kirloskar Pneumatic Company 1996 401 (SC). (84)ELT 401 (SC). (84)ELT (84)ELT 401 (SC).

10. On the other hand, Shri Rana, learned senior Counsel appearing Revenue, opposed contentions petitioner. He submits condone appellate Authority beyond prescribed prescribed. He submis, justification reading powers favour authorities Act. He further submits justificaton indirectly seeking application provisions of the Limitation Act to such power of condonation of delay. ISSUE: THETHETHE ISSUE: ISSUE:

11. The issue that falls for consideration is whether authorities discharging duties (6) Act condone beyond period limitation prescribed Act and, whether provisions Limitation Act proceedings under the provisions of the Central Excise Act. PROVISION: STATUTORY PROVISION: STATUTORY PROVISION: STATUTORY

12. Before proceeding to consider the issue, it would be appropriate to refer to relevant provisions of section 35 of the Act which reads as under: . . "Appeals to Collector (Appeals)- (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Collector of Central Excise may appeal to the Collector of Central Excise (Appeals) (hereinafter in this Chapter referred to as the Collector(Appeals) within three months from the date of the communication to him of such decision or order. . Provided the Collector (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. CONSIDETATION: CONSIDETATION: CONSIDETATION:

13. Having heard rival parties, we must observe Popular Construction Company’s (cited supra), Court occasion consider applicability provisions Limitation 29, (7) Act,

1996. In case, arbitrator passed August 29,1998, impression Arbitration Act, 1940 applies. The Arbitrator forwarded original appellants a request the High Court Bombay a decree passed Act, provisions Arbitration

1940. The accordingly appellants before Bombay High Court March

1999. The appellant application April 19, 1999 challenging section 30 section 16 Arbitration,

1940. Subsequently, application amended inserting " Arbitratiion Conciliation Act,1996" " Arbitration Act, 1940". The application dismissed learned Single Judge October 26, 1999 ground barred limitation section 34 1996 Act. The division Bench rejected appeal upheld findings learned Single Judge. In appeal before Court contended section 29(2) Limitation Act provisions section 5 Limitation Act applicable special 1996 Act, 1996 Act itself expressly exclude applicability sufficient filing application section

34. The contention opposed (8) respondents contending section 34 plainly expressly excluded operation section 5 Limitation Act. The Court considering section 29(2) applicability provisions contained sections 4 24 Limitation Act, reviewing concluded history scheme 1996 law, Act supports conclusion time-limit prescribed section 34 challenge absolute unextendable section 5 Limitation Act. The Court referring Arbitration Conciliation Bill, 1995, preceded 1996 Act, objectives minimise supervisory courts The Court referred arbitral process. "expression exclusion" follow scheme object special referring the following observations in the case of Hukumdev Yadav vs. Lalit Narain Mishra (1974) 2 SCC 133: . Even in a case where 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.

14. The apex Court also noted the specific words (9) contained a proviso section 34(3), provided application contemplated provisions within period months, entertained within a further period thirty " thereafter". Therefore, wording provision taking account scheme Act, Court provisions section 29(2) consequently sections 4 24 the Limitation Act are not applicable to the proceedings under the 1996 Act."

15. So far as applicability of the provisions of Limitation Act section 29 Act concerned, a Bench learned Judges Court reviewed regarding applicability provisions Limitation Act section 29(2) Act Gopal Sardar v. Karuna Sardar (2004) 4SCC 252

1955. reference West Bengal Land Reforms Act, The whether limitation prescribed section 8 making application enlarged virtue application provisions Limitation Act. The Court reviewed earlier decisions starting Kaushalya Ranivs. Gopal Singh AIR 1964 SC 260 and concluded as under: (10) . "Considering the scheme of the Act being a self-contained code in dealing with the matters arising under section 8 of the Act and in the light of the aforementioned decisions of this Court in the case of Hukumdev Narain Yadav (1974) 2 SCC 133, Anwari Basavaraj Patil (1993), 1 SCC 636 and Parson Tools (1975) 35 STC 413 (SC); (1975) 4SCC 22 it should be construed that there has been exclusion of application of section 5 of the Limitation to an application under section 8 of the Act. In view of what is stated above, the non-applicability of section 5 of the Limitation Act to proceedings under section 8 of the Act is certain and sufficiently clear. Section 29(2) of the Limitation Act as to the express exclusion of section 5 of the Limitation Act and the specific period of limitation prescribed under section 8 of the Act without providing for either extension of time or application of section 5 of the Limitation Act or its principles can be read together harmoniously. Such reading does not lead to any absurdity or unworkability of frustrating the object of the Act. At any rate, in the light of three-Judge Bench decision of this Court in Hukumdev Narain Yadav case (1974) 2SCC 133 and subsequently followed in Anwari Basavaraj Patil case (1993) 1 SCC 636 even though special or local law does not state in so many words expressly that section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the Scheme of the Act and having regard to various provisions such express exclusion could be gathered.."

16. (cited In the case of Kirloskar Penumatic Company supra), Apex Court considering jurisdiction Articles 226 227 Constitution India. The Apex Court conferred Articles designed effectuate law, enforce Rule ensure several authorities organs State accordance law. (11) It cannot invoked directing authorities contrary law. In particular, customs authorities, creatures Customs Act, cannot directed ignore contrary section 27, whether before amendment. the High Court a Civil Court provisions authorities May Act are. Nor question High Court clothing authorities powers Article 226 or the power of a civil Court. No such delegation or conferment can ever be conceived.

17. 117 In case of Ion Exchange India Ltd. (2000) STC 436 (SC) Court considering section 24(7) Orissa Sales Tax Act, 1947m amount accordance Tribunal stayed pending disposal application reference. However, provision cannot a exercise jurisdiction High Court Article 226 Constitution India. But, time, Court agreed exercising Article 226 Constitution India, High Court should legislative intention indicated sub-section (7) section 24 should respect Only in exceptional cases, should the Court interfere and not as a matter of course. it. (12)

18. If we examine the relevant provisions of the Act, decisions referred earlier, though provisions Act contain express excluding applicability provisions Limitation Act, considered Act. First all, Central Excise Act, 1944, a self-contained providing remedies contingencies administration provisions Act, viz. Act provides provided, procedure enforce rights, prescribed, remedies including appeals revisions provided, penalties provisions indicated non-compliance orders passed provisions Act. Further period limitation is also specifically prescribed for filing of the returns, appeals, revisions etc. . The submissions made by the learned Counsel for petitioner on both counts are devoid of any substance.

19. vs.vs.vs. Navinon Limited This Court in the case of Navinon Limited Navinon Limited Union Union Union India India India 2005 2005 2005 (1) (1) (1) Bom.C.R. Bom.C.R. Bom.C.R. 58, 58, 58, (Devadhar,J.) a party, occasion consider identical question (13) applicability Limitation vis-a-v-s condone delay. The Division Bench Court Such Code Limitation Act applies Courts. Court necessarily constituted Civil Procedure Code Criminal Procedure. The functions Court trapping Courts a Court purposes applicability. This judgment further Commissioner Central Excise jurisdiction condone beyond 60 filing appeal. If so, condonation delay was rightly refused by the first appellate authority for want of powers to condone.

20. It is needless to mention that if the order passed appellate authority Central Excise Act cannot faulted, impugned cannot aside. Maintaining impugned powers Article 226 cannot invoked condoning delay, simply because inconsistent orders proceedings permissible (see Dwarkaprasad Dwarkaprasad Dwarkaprasad vs.vs.vs. Harikant Harikant Harikant Prasad, Prasad, Prasad, AIR AIR AIR 1973 1973 1973 SC SC SC 655; 655; 655; Mahadev Mahadev Mahadev MarutiMarutiMaruti vs.Shri vs.Shri vs.Shri Ganapati, Ganapati, Ganapati, AIR AIR AIR 173 173 173 Bom.119; Bom.119; Bom.119; Amba Amba Amba BaiBaiBai vs. vs. vs. Gopal Gopal Gopal 2001 AIR 2001 AIR 2001 AIR SCW SCW SCW

1996. 1996. 1996. Even otherwise, opinion, a condone delay in exercise of powers under Article 226 of the Constitution of India. (14)

21. Learned Counsel appearing for the petitioner various judgments canvas point. However, necessary detailed judgment Court Navinon Ltd. (supra), deals with the same issue based on more or less same submissions. . In the result, petition is dismissed in limine with no order as to costs. (J.P. DEVADHAR,J.) DEVADHAR,J.) (J.P. (J.P. DEVADHAR,J.) (V.C. DAGA,J.) DAGA,J.) (V.C. (V.C. DAGA,J.)