Customs, Excise and Gold Tribunal - Tamil Nadu
T.N. Tobacco Co. vs Commissioner Of Cce on 1 June, 1998
Equivalent citations: 1998(61)ECC614, 1998ECR706(TRI.-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. This is a COD application seeking condonation of delay in filing the reference .application. The Tribunal had disposed of the appeal by final order No. 862/1995 dated 24.11.95.
2. Section 35G provides for filing application for referring question of law arising out of the said order to the High Court and such application is required to be filed within 60 days upon service and the Tribunal has been vested with the power to condone the delay of another 30 days on sufficient cause being Shown. Section 35G reads as follows:
The Collector of Central Excise or the other party may, within sixty days of the date upon which he is served with notice of an order under Section 35G (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court:
Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein before specified, allow it to be presented within a further period not exceeding thirty days.
3. The applicant in this particular case had not filed reference application till 19.2.98 and he had filed it only on 20.12.98 seeking condonation, knowing fully well that such application is to be filed within the stipulated period under Section 35G. The reason given by the applicant is that he has filed on 18.3.95 an application for rectification of mistake and the said application was dismissed on 12.6.90 and the applicant preferred a Writ petition against the said order on 4.10.90 which was dismissed by the Single Judge on 30.8.97. He then preferred a Writ appeal on 10.10.97 which was also dismissed by the Division Bench on 23.10.97. He then preferred a SLP before the Hon'ble Supreme Court which was also dismissed on 9.2.98. It was his contention that he had made a prayer before he Hon'ble Supreme Court that he wanted to file a reference application and hence, wishes to withdraw the SLP and the SLP was dismissed as withdrawn. It was submitted that the Hon'ble Supreme Court had observed that "it will be open to the petitioner to avail the remedy of reference, if available".
4. The learned Senior Counsel argued that the time taken for pursuing other remedies before the High Court and the Supreme Court should be excluded while considering the limitation period for filing the reference application before the Tribunal. It is his contention that he has filed the reference application within one month from the date of receipt of the order of the Hon'ble Supreme Court and hence there is no delay and if there is any it should be condoned. He further submitted that the Hon'ble Supreme Court in the case of Madura Coats v. CCE, Madurai reported in 1994(71) ELT 347 (SC) has observed that the delay in filing the appeal before the Tribunal due to pursuing other remedies in the High Court or the Supreme Court is a sufficient cause for condoning the delay. He submitted that same ratio would apply under the provisions of Section 35G of the CEA 1944. He submitted that the delay in filing the reference applications should be condoned.
5. The learned DR firmly opposes the contention of the learned Senior Counsel on the ground that the Tribunal is a creature of law and it is bound by the limitation laid down under Section 35G of the CEA 1944 itself and it cannot condone the delay beyond 30 days in terms of the proviso to Section 35G.
6. Both the sides were asked to give citations in this case, but they expressed their inability. The Bench had to look into the various judgments and it was noted that similar issue had been agitated number of times before the Tribunal and there are a large number of judgments covering the issue. The common thread of the ratio is that the Tribunal being a creature of the statute does not have the jurisdiction to condone the delay where the legislature clearly declares the intent in the scheme and language of a statute, it is the duty of the Court to give effect to the same without scanning its wisdom or policy and without engrafting adding or implying anything which is not convenient to or consistent with such expressed intent of the law--giver, more so, if the statute is a taxation statute. This observation is found in the judgment rendered by the Calcutta High Court in the case of Metro Exporters v. CEGAT . In paras 5 & 6 of the judgment the High Court had taken note of the Supreme Court judgment rendered in and that of . It was discussed that under the UP Sales Tax Act and the UP Sales Tax Rules, application was filed beyond the time prescribed by Section 10, it was found that if the legislature in a special statute prescribed a certain period of limitation for filing a particular application, there under and provides in clear terms that such period of sufficient cause being shown may be extended in the maximum only upto the specified time limit and no further, the Tribunal concerned has no jurisdiction to treat within limitation the application filed before it beyond the such maximum time limit specified in the statute by excluding the time spent in prosecuting in good faith and with due diligence in prior proceedings on the analogy of Section 13(2) of the Limitation Act. Further observations are found in para 6 of the judgment wherein it has been observed that the Tribunal being a creature of the statute has to exercise its power under the provisions of the said statute. The concept of larger freedom as provided under Section 5 of the Limitation Act is not available to the Tribunal but the special Statute does not prohibit the Tribunal to entertain application for condonation of delay and the consideration of the sufficient cause as to delay in filing revisibnal application beyond the extended period while the revisional application has in fact been filed within the extended period of limitation. It is frequently found that an appeal or revision application or reference being filed long ago come up for hearing and at the stage of hearing if it is found that there is any delay leave is granted to pray for condonation of such delay. While considering the application for condonation of delay, the Court or Authority has not to consider delay in filing the application for condonation of delay and it is required to consider delay in filing the memorandum of appeal or revision or the reference.
7. The judgment is that the Tribunal is bound by the limitation stipulated under Section 35G of the CEA 1944 and that the provisions of the Limitation Act is not available to the Tribunal.
8. The Tribunal by a larger bench decision in the case of CCE Meerut v. Lalchand Anand and Ors. comprising of five members have laid clown the law and held that reference application has to be filed within the period stipulated under Section 35G(1) of the CEA 1944 i.e. within 60 days of the receipt of the order of the Tribunal. The descretion vested in the Tribunal to condone delay is confined to a period of 30 days beyond the initial period of 60 days and noting this the Collector's application for condonation of delay beyond this period was rejected as barred by time.
9. This matter was again raised in the case of Video Electronics Private Ltd. v. CCE, . The Tribunal in this order taken into consideration the various other judgments including those of the High Courts and noting the particular judgment in the case of Commissioner of Sales Tax UP v. Parson Tools and Plants quoted the observation that the authorities functioning under the Sales Tax Act are merely Administrative Tribunals and not Courts and Section 14 of the Limitation Act. therefore, does not in terms apply to the proceedings before such Tribunals. The Tribunal again noted the observation of the Supreme Court in the case of Nityanand M. Joshi v. LIC of India wherein it is observed that it seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to Courts and Labour Court is not a Court within the Indian Limitation Act, 1963. Again the Tribunal quoted the judgment of the Supreme Court rendered in the case of Sakum v. Tanqji wherein the Hon'ble Supreme Court held that the provisions of Limitation Act apply to proceedings before Courts only and not to proceedings before quasi-judicial authorities. The Tribunal also quoted the judgment of the case of Canara Workshop Ltd, Mangalore v. CC Madras reported in 1983 ELT 1099 wherein it is held that the provisions of Limitation Act only apply to appeals before. Courts and not proceedings before Special adjudicating authorities. Noting all these judgments The Tribunal concluded that the limitation laid down under Section 35G of the CEA 1944 cannot be extended beyond the stipulated period laid down therein.
10. In the case of West Coast Paper Mills Ltd. v. CCE, the Tribunal has gone in great detail into the aspect of the matter and has relied upon the judgment of the Gujarat High Court in the case of Dineshbhai v. Kripalu Co-op Housing Society to hold that where a special or local law itself provides for a period of limitation for filing of appeal or application, and also provides for limited application and exercise of powers analogous to Section 5 of the limitation Act in that the authority under the Act may entertain an application or appeal within the further period on proof of sufficient cause Section 5 of the Limitation Act does not apply. The Tribunal also noted the judgment of the Supreme Court rendered in the case of Commissioner of UP v. Parson Tools & Plants Kanpur, to conclude that the said judgment would apply in all fours and came to the conclusion that the Limitation Act is not attracted to the reference application filed under Section 35G of the CEA 1944 and the Tribunal is not empowered to condone the delay beyond 30 days in terms of proviso to Section 35G of the CEA 1944. The Tribunal again considered this aspect in the case Brij Kishore Maheswari and Ors. v. CC, Madras, reported and noting the judgment of the Supreme Court held that reference application filed beyond the condonable period of limitation is not sustainable. The Tribunal again considered this aspect in the case of CCE v. Tata Engg. and Locomotive Co. Ltd. and noting the ratio of the judgment of the Supreme Court in the case of Commissioner of Sales Tax v. Parson Tools and Plants reported in 25 ST cases 413 : 1970 1 Supreme Court Journal 24, and that of the decision of the Larger Bench judgment rendered in rejected the reference application as time barred on the terms that if the legislature in a special statute certain period of limitation for filing a particular application therein and provides in clear terms that such period of sufficient cause being shown may be extended, in the maximum only up to a specified time limit and no further, than the Tribunal concerned has no jurisdiction to treat within limitation application filed before it beyond such maximum time limit specified in the statute by excluding the time limit spent in prosecuting in good faith and diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act. In view of the well settled law in similar cases, in all he judgments cited supra, there is no merit in the application and respectfully following those judgments the application for condonation of delay in filing the reference is, rejected. Consequently, the reference application is also rejected.
Order pronounced on 5.6.98.