Limitation Act

Central Excise - appeal to High Court - High Court has no power to condone delay - Limitation Act not applicable: Bombay High Court MUMBAI, SEPT 10, 2008 : THE issue was already decided by the Supreme Court in COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, NOIDA Vs M/s PUNJAB FIBRES LTD, NOIDA - 2008-TIOL-24-SC-CX. The High Court however again considered the issue in great detail, referring to several decided cases and the Laws. In these appeals, the Commissioner has sought condonation of delay and there was no real opposition from the respondents, but the High Court suo moto took up the issue whether the High Court had the power to condone delay, observing, “As this matter goes to the very root of jurisdiction of the Court, the sufficiency or otherwise of the delay in filing of the Appeal loses much of its significance.” The High Court observed, “Expiration of the period of limitation as a necessary corollary gives rise to a right in favour of the beneficiary of the order. This right attains higher dimensions and greater projection when the provisions relating to such an appeal do not permit condonation in the event the remedy is invoked after the prescribed period. Where the language of the provision is unambiguous and clear, there is no provision under the special Act giving inherent power to the Court to condone the delay and intent of the Legislature is clear to exclude recourse to general provision, the Courts would hardly have any power to condone the delay on general principles or by recourse to inherent powers that may be vested in the Court by its very constitution.” The High Court also referred to the Supreme Court decision in Punjab Fibres Ltd - 2008-TIOL-24-SC-CX. Wherein it was held that that there was no provision under the special statute for condonation of delay and as such, the High Court had no power to condone the delay in making an application for reference. Now that was a case relating to ‘reference’, but does it apply to ‘appeal”? “YES”, the High Court held emphatically. As per Section 35H, the reference application had to be made within 180 days. The High Court observed, “The language of section 35H is practically para materia to section 35G(1) of the Act. In fact, it does not use the expression `shall’ as used in section 35G of the Act. On the contrary, it uses the expression `may’ in relation to the option of a party to file an appeal or not. The words used in section 35H are `within 180 days’ while in section 35G, the expression used is `shall be filed within 180 days’. Certainly, on its plain reading, the language of section 35G is much more emphatic and commanding.” In the case of Punjab Fibres Ltd. (supra), the Supreme Court has clearly enunciated the principles while relying upon its earlier judgments and finally concluded that : “At this juncture, it would be appropriate to take note of Section 35G which provides for an appeal to the Appellate Tribunal which specifically says that it has to be within three months from the date on which the impugned order is communicated. But proviso to Section 35G permits the Appellate Tribunal to allow the appeal even after the aforesaid limitation prescribed in clause 1 is expired if the Tribunal is satisfied that there was sufficient cause for not filing the appeal within the prescribed time. No such provision for condonation of delay exist in Section 35H. In other words, the legislative intent is clear that the Parliament never intended that delay in filing the reference application under Section 35H could be condoned.” The High Court further observed, 1. As is obvious from the bare reading of section 35G of the Act, it does not provide for condonation of delay or entertainment of an appeal by the High Court after the prescribed period of limitation of 180 days from the date of receiving of the order are over. 2. The provision is definitely unambiguous and does not admit of any laxity by the party concerned in relation to the period of limitation. 3. The only distinction between the provisions of sections 35G and 35H respectively, is that under one an appeal lies to the High Court while under the other, the reference is to be made to the High Court. 4. The expression `shall’ is incapable of any dilution, at least, in comparison to the word `within’. 5. The language used by the Legislature is clear a command to adhere to the period of limitation and leaves no scope of carving out exception to the rule of limitation in such circumstances, is to be construed strictly and would operate with all its vigour. Limitation Act excluded: It is not essential for the special or local law, in terms, to exclude the provisions of the Limitation Act. It is sufficient that if on a consideration of the language of its provision relating to limitation, the intention to exclude can necessarily be implied. The essence of providing a limitation is that a legal right of remedy available at a given point of time could distinguish in law after expiry of the said period. Where the Legislature gives no power to the court to condone the delay after the specified period of limitation, the court may not be able to assume such a power in exercise of its inherent jurisdiction. The law is what it reads on its plain and simple reading. The provisions of section 35G admit no ambiguity. In no uncertain terms it commands the institution of the appeal within a period of 180 days from the date of receipt of the order of the Appellate Tribunal by the aggrieved party whereafter the provisions do not give or vest the court with any power to entertain an appeal thereafter. Such exclusion of the provisions of the Limitation Act is, thus, implicit by necessary implication. So the Revenue’s petitions for Condonation of Delay were dismissed.