By Dr. K. Shivaram, Ajay R. Singh, Advocates
New Page 1
22 Appeal : Condonation of delay : High
Court is empowered to condone delay in filing appeals u/s.35G of the Central
Excise Act, 1944.
In view of conflicting decisions of two Division Benches of
the Bombay High Court on the issue of whether this Court is empowered to condone
the delay in filing appeals u/s.35G of the Central Excise Act, 1944, which are
filed beyond the prescribed period of 180 days, a Full Bench of three judges was
constituted.
One Division Bench in the case of Commissioner of Customs
v. M/s. Sujog Fine Chemicals (India) Ltd., by a judgment and order dated
13th August 2008 held that in the light of S. 29(2) of the Limitation Act, 1963,
in any appeal filed u/s.130 of the Customs Act, 1962, this Court is empowered
u/s.5 of the Limitation Act, 1963 to condone the delay.
Whereas another Division Bench in a group of cases in
Commissioner of Central Excise v. M/s. Shruti Colorants Ltd., by a judgment
and order dated 29th August 2008 involving appeals u/s.35G of the Central Excise
Act, 1944 held that this Court is not empowered to condone the delay taking
recourse to S. 5 of the Limitation Act, 1963.
The Full Bench after analysing the aspect in depth, came to a
conclusion that in such appeals, the High Court is empowered to have recourse to
S. 5 of the Limitation Act.
Unfortunately the two judgments of the Supreme Court in the
case of Mukri Gopalan v. Chepplat Puthanpurayil Aboobacker, AIR 1995 SC
2272 and also of State of West Bengal & Ors v. Kartik Chandra Das, (1996)
5 SCC 342 were not brought to the notice of the Division Bench which decided the
Shruti Colorants Case. In fact the above two judgments of the Supreme Court deal
with the scope and purport of S. 29(2) of the Limitation Act exhaustively,
clearly holding that unless expressly excluded, Civil Courts are empowered to
have recourse to S. 5 of the Limitation Act to condone the delay.
Similarly the Full Bench judgment of the Bombay High Court in
the case of Commissioner of Income-tax v. Velingkar Brothers, (2007) 289
ITR 382 (Bom.) (FB) was not brought to the notice of the above Division Bench
which dealt with the case of Shruti Colorants. 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 S. 5
of the Limitation Act.
The Full Bench observed that the High Court being the
Superior Court, the power to condone the delay in filing the appeal must be read
to be existent, more so by virtue of S. 29(2) of the Limitation Act, unless
there is a clear indication of its exclusion by implication.
The Full Bench also held that the word ‘shall’ and the longer
period of limitation (120 days) were not indicators of such exclusion.
In Mukri Gopalan’s case, it was found that there was no
express exclusion anywhere in the Rent Act, taking out the applicability of S. 5
of the Limitation Act. In the present case also there is no express exclusion of
S. 5 of the Limitation Act in S. 35G of the Central Excise Act, and the same
cannot be lightly implied or inferred.
Thus the Full Bench held that S. 5 of the Limitation Act will
be applicable to appeals filed u/s.35G of the Central Excise Act, 1944.
[The Commissioner of Central Excise v. M/s. Shree Rubber
Plast Co. P. Ltd. Notice of Motion No. 1485 of 2008 in CEXAL No. 88 of
2008 Bombay High Court (Full Bench), dated 19-12-2008. Source : itatonline.org]
