Whether a delay in filing appeal to Commissioner Appeals beyond the prescribed period could be condoned by resorting to Limitation Act, 1963?

PJ/Case Laws/2012-13/1460

Case:-RAJ CHEMICALS V/S UNION OF INDIA

Citation:- 2013(287) E.L.T. 145(Bom.)

Brief Facts: - In these proceedings under Article 226 of the Constitution, the Petitioner has sought a direction from this Court to condone the delay in filing an appeal against an order dated 5 March, 2010 of the Assistant Commissioner, Central Excise, Navi Mumbai. An appeal lies against the order of the Assistant Commissioner to the Commissioner of Central Excise (Appeals), but no appeal was filed within the period of limitation prescribed by Section 35 of the Central Excise Act, 1944. The submission of the petitioner is that in exercise of the powers conferred by Section 5 of the Limitation Act, 1963, it would be open to this Court while exercising its jurisdiction under Article 226 of the Constitution to condone the delay, even though it is beyond the period prescribed by Section 35 of the Central Excise Act, 1944. Alternatively, it has been prayed that the order of the Assistant Commissioner, dismissing the rebate applications may be made subject to the outcome of the Revision Application filed by the petitioner before the Government of India. By his order dated 5 March, 2010, the Assistant Commissioner, Central Excise, rejected seven rebate applications filed by the petitioner under Rule 18 of the Central Excise Rules, 2002. The adjudicating authority allowed the re-credit of Central Excise duty amounting to Rs. 15.48 lakhs debited through the Cenvat credit account of the petitioner. The petitioner was granted liberty to file refund applications under Rule 5 of the Cenvat Credit Rules, 2004.

Petitioner’s Contention: - The petitioner contended that notwithstanding the fact that the Legislature under the proviso to sub-section (1) of Section 35 has laid down an outer limit of a further period of thirty days, beyond the original period of sixty days, for condonation of delay, this does not oust the power of the Court under Section 5 of the Limitation Act, 1963. Further, under Section 29 of the Limitation Act, 1963, the provisions of Sections 4 to 24 are to apply to the period of limitation prescribed for any suit, appeal or application under a special or local law only in so far as, and to the extent to which they are not expressly excluded by such special or local law. The submission is that in order that there should be an express exclusion, there must be an absolute embargo placed by the express words of the statute excluding the application of Section 5 of the Limitation Act, 1963.
Further he submit that unlike Section 35H which provided an absolute period of limitation of 180 days, Section 35 to which the present petition relates, does provide a power to condone a delay beyond sixty days though up to an extent of thirty days. Hence, it was sought to be urged that there was no absolute bar to take recourse to the provisions of Section 5 of the Limitation Act, 1963.

Reasoning of Judgment: - The Hon’ble High Court held that Section 35 of the Central Excise Act, 1944 provides that any person aggrieved by a decision or order of a Central Excise Officer, lower in rank than a Commissioner, may appeal to the Commissioner of Central Excise (Appeals) within sixty days from the date of the communication of the order. Under the proviso, the Commissioner (Appeals) is empowered, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, to allow it to be presented within a further period of thirty days.
It was held that the Central Excise Act, 1944 is a special Act governing the levy, collection and recovery of Central Excise duty on goods manufactured or produced in India. In sub-section (1) of Section 35, the Legislature has mandated that an appeal before the Commissioner (Appeals) has to be filed within sixty days from the date of the communication of the order. Under the proviso, the Commissioner (Appeals) is permitted to allow the appeal to be filed within a further period of thirty days on sufficient cause being shown to his satisfaction. In other words, the clear intent of Parliament was that the power to condone the delay can be exercised only subject to sufficient cause being shown and to an extent of an outer limit of thirty days beyond the period of sixty days prescribed for filing of an appeal. Now, it is well settled that while construing whether the special law, within the meaning of Section 29(2) of the Limitation Act, 1963 expressly excludes the provisions of Sections 4 to 24 of the Limitation Act, 1963, regard must be had to the overall scheme of the Act. Where the scheme of the Act indicates that the Legislature intended that an Appellate Authority should entertain an appeal by condoning a delay up to a certain period, that would evince a clear intent to exclude the provisions of Section 5 of the Limitation Act, 1963. In the present case, the clear provision is that an appeal has to be filed within sixty days and beyond that a delay up to thirty days can be condoned. The delay in excess of thirty days cannot be condoned by taking recourse to the provisions of Section 5 of the Limitation Act which would stand expressly excluded within the meaning of Section 29(2). The High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, cannot permit or direct an infraction by the authorities created by a statute of the provisions of the statute under which they are constituted. When a period of limitation is prescribed for filing of an appeal and the extent of the power to condone the delay is also prescribed by the statute, the exercise of the writ jurisdiction under Article 226 of the Constitution would clearly be not warranted to direct the adjudicatory or appellate authority to breach the provision for limitation. This principle was laid down in the judgment of the Supreme Court in Union of India v. Kirloskar Pneumatic Company - 1996 (84) E.L.T. 401 (S.C.). While construing the provisions of Section 27 of the Customs Act, 1962, the Supreme Court noted that a claim for refund could be made only in accordance with the provisions of that Section which inter alia included a period of limitation mentioned therein. In a more recent judgment of the Supreme Court in Commissioner of Customs and Central Excise v. Hongo India (P) Ltd. - 2009 (236) E.L.T. 417 (S.C.) the provisions of Section 35H(1) of the Central Excise Act, 1944 prior to its amendment came up for consideration before the Supreme Court. The issue was whether a delay beyond the prescribed period could be condoned in exercise of the power of Section 5 of the Limitation Act, 1963. Under the provisions of Section 35H, as they then stood before the amendment, the Commissioner or other party could, within a period of 180 days of the date upon which he is served with a notice of an order under Section 35C, direct the Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. The Supreme Court held that the language used in other provisions of the Act makes the position clear that the Legislature intended the appellate authority to entertain the appeal by condoning the delay only up to thirty days after expiry of sixty days which is the preliminary limitation period for preferring an appeal. Hence, the Supreme Court ruled that in the absence of any clause permitting condoning of the delay by showing sufficient cause after the prescribed period, there is a complete exclusion of Section 5 of the Limitation Act, 1963. The submission before the Supreme Court in regard to Section 29(2) was that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded.
They held that the submission of the petitioner cannot be accepted. Once the Legislature has laid down a period within which an appeal has to be filed and has prescribed the extent to which a delay beyond that period can be condoned, recourse to the provisions of Section 5 of the Limitation Act, 1963 would stand “expressly excluded” within the meaning of Section 29(2) of the Limitation Act, 1963. Accepting the submission of the Petitioner would completely defeat the scheme of the Central Excise Act, 1944. In any event, the High Court in the exercise of its jurisdiction under Article 226 of the Constitution cannot issue a direction which would command the authorities constituted under the Act to bypass or breach the provisions made in the statute. The Petitioner not having filed an appeal against the order of the Assistant Commissioner, dated 5 March, 2010 within limitation, this Court would not be justified in entertaining the petition and directing the Commissioner (Appeals) to condone the delay.

Decision: - Writ petition dismissed.

Comment:-The conclusion drawn from this case is that it is settled law that the specific law prevails over the general law. In a similar manner, when there is clear cut provision in the Central Excise Act, regarding the time limit of filing an appeal to the Commissioner Appeals, the provisions of the Limitation Act cannot be resorted to.

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PJ/Case Laws/2012-13/1460

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