Patna High Court
Commissioner Customs Department vs Smt. Nirmala Mitra on 28 June, 2004
Equivalent citations: 2004(2)BLJR1329
Author: R.S. Garg
Bench: R.S. Garg
ORDER R.S. Garg, J.
1. The short question argued at length and in great details by the legal luminaries can be summarized as to whether the High Court is entitled to apply the provisions of Indian Limitation Act specially Section 29(2) and Section 5 to condone the delay, in an application under Section 130-A of Indian Customs Act made by the party appellant. We are required to explicit what is the implicit and inherent in the provisions of law because the respondent-objector has submitted that the petitioner is not entitled to an order of condonation of delay of three days in making the application for reference.
2. The facts necessary for disposal of the present controversy in short are that on 4.11.1950 the CID Branch of Bombay police instituted a case against one S.K. Mitra, husband of the respondent observing that the deceased made certain defalcation of government money. They also seized foreign marked gold bars from the residential premises situate in Bombay. The police case was that out of the defalcated money, said S.K. Mitra acquired moveable and immovable properties. The further allegations were that he acquired the properties between 1941 till September, 1949. He was tried under Section 409, 420, 467 and Section 120-B, read with Section 4d9, 420, 467/471 of the Indian Penal Code. The criminal case was finally decided in 1993. The gold bars which form part of the attachment proceedings in defalcation case No. MJC No. 31 of 1949 before the Judicial Commissioner, Ranchi was disposed of by the order passed on 5.1.1993 and revised on 7.1.1993. Said S.K. Mitra died in 1976, therefore, his widow, the present respondent Smt Nirmala Mitra claims to have inherited the properties including the foreign gold bars. Thereafter the Commissioner of Customs and Central Excise filed Cr WJC No. 69/1990 (R) before the Patna High Court (Ranchi Bench) for possession of the foreign gold bars and the primary gold so that they could proceed under the Customs Act, 1962 and the Gold (Control) Act, 1968. The learned Judicial Commissioner gave liberty to the Central Excise and Customs authority to initiate action under the Customs Act, 1962 in respect of the foreign gold bars. Certain proceedings were thereafter taken. The inventory of foreign gold bars were prepared by the Customs officials and the same were signed by the Assistant Commissioner of Customs and Central Excise, Ranchi. The respondent thereafter informed the Manager of the State Bank of India that inventory of the articles were prepared and duly signed and the same was kept in the sealed box in presence of the parties. The letter was counter signed by the Inspector of Customs and Central Excise. The Assistant Commissioner of Customs and Central Excise vide his letter dated 21.1.1993 informed the respondent that on 18.1.1993 as per the order of the Judicial Commissioner, Ranchi (dated 7.1.1993) the gold of foreign origin was examined for auction under the Customs Act, 1962. It was found by the authorities that the said gold bars were possessed by her in contravention of the various provisions of the Customs Act, 1962, it was ordered that gold of the foreign origin was liable for confiscation under Section 111 of the Customs Act; 1962. A formal detention order was also sent along with the said letter. A formal seizure of the said gold bars was prepared on 4.3.1993. On 2.4.1993 a notice was issued to the respondent to show cause as to why the said gold of foreign origin be not confiscated and penalty be not imposed. The respondents submitted her show cause and after considering the same the Commissioner of Customs, Patna directed absolute confiscation of the foreign marked gold under Section 111 (d) of the Customs Act, 1962 and also imposed a personal penalty against the respondent under Section 112 (b) of the Customs Act, 1962. These proceedings were drawn by the Commissioner, of Customs, Patna in his Adjudication Order No. 12/CC/AD'J/99 and the final order was passed on 9.8.1999.
3. The respondent being aggrieved by the said order preferred Appeal No. C-416/99 before the Customs Excise and Gold (Control) Appellate Tribunal (CEGAT), Eastern Bench, Kolkata.
4. -After hearing learned counsel for the parties the CEGAT by its Order No. A-406-KOL/2001 dated 19.6.2001 decided the matter in favour of the respondent and held that the onus to prove non- smuggled nature of the gold was not on the present respondent and thereafter it observed that the present respondent (appellant before the CEGAT) was entitled to possession of the said gold bars. The personal penalty of Rs. 25,000/- was also set aside. The appeal was allowed in toto.
5. According to the petitioner, the copy of the order was received in the office of the Commissioner of Customs, Patna on 23.7.2001 and after examining the records the matter was referred to the Legal Branch of the Commissioner of Customs, Patna by the Appeal Section. Thereafter the record was sent to the Office of Senior Central Government Standing Counsel and later on it was marked to the Additional Central Government Standing Counsel, a draft was prepared and finally the present matter was filed on 22.1.2002. According to the petitioner, an application seeking reference could have been filed within 180 days from the date of receipt of the copy of the order but because of the procedural delays, the appeal could be filed with delay of three days. They have submitted that the delay in filing the application under Section 130-A of the Customs Act be condoned and the matter be heard on merits.
6. It is to be noted that the respondents have submitted that the application filed under Section 5 of the Limitation Act deserves to be rejected because the provisions of Section 29(2) and Section 5 of the Limitation Act do not apply to the present matter, therefore, the application be dismissed and consequently the main application filed under Section 130-A of the Customs Act be also rejected. Learned counsel for the respondents has submitted that if the legislature wilfully omits to incorporate something of an analogous law in a subsequent statuta, or even if there is casus omissus, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. According to them, to do so "would be entrenching upon the preserves of legislature." It is also submitted that the will of the legislature is the supreme law of the land, and demands perfect obedience. It is also submitted that judicial power is never exercised for the purpose of giving affect to the will of the judges; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law. They have submitted that the Court is obliged and duty bound to give full effect to the scheme and language of the statute without scanning the wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver, more so if the statute is a taxing statute.
7. Reliance has been placed upon judgments of the Supreme Court in the matter of Commercial and Sales Tax, U.P. v. Parson Tolls & Plants, (1975) 4 SCC 22, paragraphs 15-17 and 23. It is also submitted that the Limitation Act, would not apply to a reference application inasmuch as the Customs Act, 1962 is a complete and self-contained Code which does not admit of the introduction of the principles or the previsions of the law contained in the Limitation Act, 1963. For this proposition reliance is placed on the judgment of the Supreme Court in the matter of K. Venkateswara Rao v. Bakkam Narashima Reddi, (1969) 1 SCR 679.
8. It is also contended by the respondents that in the reference jurisdiction under Section 130-A of the Customs Act, the High Court is not given any jurisdiction or power to consider whether there was any sufficient cause for the delay nor has it any power similar to the power under Section 5 of the Limitation Act to condone such delay. Reliance has been placed upon judgments of Hiranand Ramsukh v. State of Hyderabad, (1954) 26 ITR 608, and Hajee Mahbood Bux Ehhan Illahi v. CIT(1950) 18 ITR 72.
9. It is also contended that in answering the questions or disposing of references under Section 130-A of the Customs Act, 1962, which is similar to Section 66 of the Indian income Tax Act, 1922 or Section 256 of the Income Tax Act, 1961, the High Court does not exercise any jurisdiction conferred upon them by the Code of Civil Procedure or the Charters or by the Acts establishing the respective High Courts. It is contended that in respect of certain matters, jurisdiction exercised by the High Court must be kept separate from the concept of inherent powers or incidental powers in exercising Jurisdiction under Section 130-A of the 1962 Act. According to them, Section 180-A, is a special jurisdiction of a limited nature not conferred by the Code of Civil Procedure or by the Charters or by the Special Acts constituting such High Courts but by the special provisions of the Customs Act, 1962 for the limited purpose of obtaining the High Court's opinion on questions of law. Reliance has been placed upon the judgment of the Supreme Court in the matter of C.I.T. v. Bansi Dhar and Sons, 1986 (24) ELT 193 (SC). Simultaneously it has been argued that stay orders in reference applications are not permissible therefore an analogy must be drawn and it must be observed that if the High Court does not have power to grant stay either under the Code of Civil Procedure or inherent powers or under the Charters or the incidental powers than it has no powers to condone the delay. For the said submission, reliance has again been placed on the judgment of the Supreme Court in the matter of C.I.T v. Bansi Dhar and Sons, 1986 (24) ELT 193 (SC) and the judgment of the Calcutta High Court in the matter of Anoop Kumar v. Commissioner of Customs (Prev.), WB reported in 2002 (145) ELT 48.
10. Learned counsel for the applicant on the other hand submitted that the submissions made by the objector-respondent are misconceived. According to him, Section 29(2) of the Indian Limitation Act, 1963 is not identical to Section 29 of 1908 Act, and as there are material changes and provisions of Section 4 to 24 have been made applicable to applications and appeal other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, the High Court being a Court of records and as Section 29(2) does not expressly exclude application of Section 5, the High Court is competent to pass order of condonation of delay. It is also submitted by him that proceedings under Section 130-A of the Customs Act, in fact, are in nature of an application to the High Court and as according to Section 2(b) of the Indian Limitation Act, an application includes a petition, the applicant before the Court is entitled to claim condonation of delay.
11. For proper appreciation of the rival contentions, the Court must look into the language of old Section 29 and Section 29, as contained in 1963 Act.
NEW OLD "29.
Savings.- (1) Nothing in this Actshall affect Sec. 25 of the Indian Contract Act, 1872 (10 of 1872).
"29.
Savings.- Nothing in this Act shall affect Sec. 25 of the Indian Contract Act. 1872.(2)
Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Sec. 3 shall apply as if such period were the period prescribed by the Schedule and for tho purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. the provisions contained in Secs. 4 to 24 inclusive shall apply only in so far as. and to the extent to which, they are not expressly excluded by such special or local law.(2)
Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Sec. 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in Sec. 4, Secs. 9 to 18, and Sec. 22 shall apply only in for far as and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.(3)
Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such taw.
(3)Nothing in this Act shall apply to suits under the Indian Divorce Act.
(4)Sections 25 and 26 and the definition o! "easement" in Sec. 2 shall not apply to cases arising in the territories to which the Indian Easements Act. 1882 (5 of 1882). may for the lime being extend."
(4)Sections 26 and 27 and the definition of "easement" in Sec. 2 shall not apply to cases arising in territories to which the Indian Ease-ments Act, 1882, may for the time being extend."
12. From a perusal of Sub-section (2) of Section 29 of the Indian Limitation Act, 1963 it would clearly appear that two requirements have to be satisfied by the authority invoking the provisions of Section 4 to 24 of the Limitation Act -- (1) there must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application and (2) the said prescription of period under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act. If these two requirements are satisfied, the consequences contemplated by Section 29 (2) would follow. Those are (1) in such a case Section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was prescribed by the Schedule : (2) for determining any period of limitation prescribed by such special or local law for a suit, appeal or application, all the provisions contained in Sections 4 to 24 would apply in so far as they are not expressly excluded by such special law.
13. It is to be seen that there is only one general law of limitation for the entire country. All other laws prescribing period of limitation are either special or local laws. They are special laws, if they prescribe period of limitation for specified cases. They are local laws, if their application is confined to specified areas. The special or local laws are saved by Section 32, and Section 29(2) of the Limitation Act. In a judgment reported in AIR 1979 SC 984 (Justiniano Augusto De Piedade Barreto v. Antonio Vicente Da Fonseca and Ors.), the Supreme Court observed that the body of provisions in the Portuguese Civil Code dealing with the subject of limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only, is 'local law'. The provisions have to be read into the Limitation Act, 1963 as if Schedule to the Limitation Act 1963 as if Schedule to the Limitation Act is amended mutatis mutandis. From the scheme of the Limitation Act it would appeal that Section 3 would control the bar of limitation. Section 3 of the Act reads as under :
"3. Bar of limitation.--(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence, (2) For the purposes of this Act -(a) . a suit is instituted--
(i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set-off or counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted - (i) in the case of a set-off, on the same date as the suit in which the set-off is pleaded; (ii) in the case of a counter-claim, on the date on which the counter-claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court."
14. According to Sub-section (1) of Section 3, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. The period of limitation is prescribed under different articles, appended to the Act, itself. The words "prescribed period" have been substituted for the words in the repealed Section "after the period of limitation prescribed therefor by the first schedule." The term "prescribed period" in defined in Section 2f as the period of limitation computed in accordance with the provisions of the Act. The Sections have, therefore, the effect of extending the purpose of limitation specified in the schedule.
15. Reverting back to Section 29(2), this Court must observe that if any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the schedule, the provisions of Section 3 shall apply as if such periods were the periods prescribed by the schedule and for the purposes of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly by such special or local law.
16. As already observed, if the period of limitation is prescribed by the special or local law then such period of limitation would be applicable to the proceedings and in such a case provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. The law in simple terms means that the limitation prescribed by the special or local law shall be applicable and if application of Sections 4 to 24 is not expressly excluded by such special or local law then provisions contained in Sections 4 to 24 would be applicable. In the matter of Mangu Ram v. Municipal Corporation of Delhi, AIR 1976 SC 105, the Supreme Court has observed that Section 5 could not be applied under the old Section (Section 5 of the Limitation Act, 1908) to periods of limitation prescribed by special or local law, but under the present Section it would apply unless excluded.'
17. Section 130-A, finds place in Chapter 15 of the Customs Act, 1962. It reads as under :
"130-A. Application to High Court.--(1) The Commissioner of Customs or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under Section 129-B, passed on or after the Ist day of July, 1999 (not being an order relating, among other things, to the determination, of any question having a relation to the rate of duty of customs 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, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the tribunal.
(2) The Commissioner of Customs or the other party applying to the High Court under Sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred.
(3) On receipt of notice that an application has been made under Sub-section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such application, file, within forty-five day's of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the High Court as if it were an application presented within the time specified in Sub-section (1).
(4) If, on an application made under Sub-section (1), the High court directs the Appellate Tribunal to refer the question of law raised in the application, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such direction, draw up a statement of the case and refer it to the High Court."
18. Section 130-A provides that the Commissioner of Customs or the Other party may within 180 days of the date upon which he is served with notice of an order under Section 129-B passed on or after the 1st day of July, 1999 by application in the prescribed form, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. If the other party (private party) makes an application then it has to pay a fee of Rs. 200/-. From the language of Section 130-A of the Customs Act, it is crystal clear that the party as per the order has to make an application to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. At this stage we must observe that we find no difficulty in holding that proceedings initiated under Section 130-A of the Customs Act, in fact, are in form of an application. At this stage it is also to be seen that under Section 29(2) of the Act of 1963 (Limitation Act) the provisions of Section 5 shall apply in case of special or local law to the extent to which they are not expressly excluded by such special or local law. Mere provision of a period of limitation in very peremptory or imperative language is not sufficient to displace the applicability of Section 5. Since Section 5 is now specifically made applicable by Section 29 (2) it is only if the special or local law expressly excludes the applicability of Section 5 that it would stand displaced, (Kindly refer to the judgment of the Supreme Court in the matter of Mangu Ram v. Municipal Corporation of Delhi, AIR 1976 SC 105. It is also to be noted that Section 3(1) itself provides that its operation is subject to Sections 4 to 24, consequently if the provisions of Section 4 to 24 are made applicable, they would necessarily override and super impose themselves upon operation of Section 3(1). In other words, the legislative mandate under Section 3(1) has to be read subject to Sections 4 to 24. Section 5 is necessarily included in the conspectus of Sections 4 to 24: It is further to be seen that exclusion of jurisdiction of a Court is not to be readily inferred. Catena of the authority say that the jurisdiction of a Court would stand excluded if the statute implies in the positive terms. The Supreme Court in no ambiguous terms has observed that howsoever obligatory or imperative language is employed in relation to the limitation but if application of Sections 4 to 24 or of Section 5 of the Limitation Act is not excluded then it cannot be argued that Section 5 would not apply. In the opinion of this Court, express exclusion means exclusion by express words i.e. by express reference to the Section and not exclusion as a result of a logical process of reasoning.
19. We shall not come to the judgments on which strong reliance has been placed upon by the learned counsel for the respondents. The matter before the Supreme Court was in relation to Section 14(2) of the Limitation Act in the matter of the Commissioner of Sales Tax, U, P., Lucknow v. Parson Tolls and Plants (1975) 4 SCC 22. Section 14(2) of the Indian Limitation Act, is in relation to exclusion of the time which is bona fide spent in some proceedings in a Court which had no jurisdiction. The Supreme Court observed that to claim the benefit under Section 14(2) of the Limitation Act, a party must prove that both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; the prior proceedings had been prosecuted with due diligence and in good faith; the failure of the prior proceedings was due to a defect of jurisdiction or other cause of a like nature and both the proceedings are proceedings in a Court. The Supreme Court further observed that the proceedings under the Sales Tax Act would be deemed to be civil proceedings but the authorities, irrespective of whether they exercise original appellate or revisional jurisdiction under the Sales Tax Act, are not 'Courts' within the contemplation of Section 14(2) of the Limitation Act. The Supreme Court observed that they are merely administrative Tribunals and "not Courts". Section 14 of the Limitation Act, therefore, does not, in terms apply to proceedings before such Tribunals. The Supreme Court further observed that even on grounds of justice, equity and good conscience, Section 14(2) would not be applicable because definite indications are available in the scheme and language of the Sales Tax Act excluding such application in principle or by analogy. In the opinion of this Court, present is not a case where the applicant is seeking exclusion of time spent bona fide before a Court which had no jurisdiction to entertain the proceedings. We must observe that in the matter of the Commissioner of Sales Tax, U.P. v. Parson Tools & Plants, (supra) the Supreme Court was considering altogether different provisions of law. The said judgment does not apply to present set of facts.
20. In the matter of K. Venkateshwara Rao and Anr. v. Bekkam Narasimha Reddi and Ors., AIR 1969 SC 872 : (1969) 1 SCR 679, the Supreme Court was considering the question of applicability of Section 29(2) and Section 5 of the Limitation Act, 1963 to an Election Petition filed under the provisions of Representation of People Act, 1951. The Supreme Court held that the Indian Limitation Act, 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of the Act, would apply to all Civil proceedings and some special proceedings which can be taken in a Court of Jaw unless the application thereof has been excluded by some enactment : the extent of such application is governed by Section 29(2). Accordingly, the Limitation Act, cannot apply to proceedings like an election petition as the Representation of People Act, is a complete Code.
21. It was further observed in the matter of Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480, that provisions of Section 5 of the Limitation Act do not govern the filing of an election petition or their trial. The Supreme Court, however, observed in the matter of Vidyacharan Shukla v. Khubchand and Ors., AIR 1964 SC 1099, that under Section 116-A(2) of the Representation of People Act, the appeal, by fiction, is equated with an appeal filed under the Civil Procedure Code, in the matter not only of exercise of powers, jurisdiction and authority but also in the matter of procedure to be followed from the date of receipt of the appeal to its final disposal. It was observed that it is treated as a special law which prescribes a period of limitation different from the period prescribed therefor by the first scheduled to the Limitation Act within the meaning of Section 29(2) of the Limitation Act. Accordingly Section 12 of the Limitation Act, is attracted and the appellant would be entitled to exclude the time taken by him for obtaining copy of the order.
22. The matter on hands is in relation to an application filed under Section 130-A of the Customs Act. The judgment in the matter of K. Venkateswara Rao v. Bekkam Narashima Reddi, (supra) has no application to the present matter.
23. In the matter of Hiranand Ramsukh v. State of Hyderabad, (supra), the Hyderabad High Court was considering the provisions contained in Section 66 (I) (3) of the Indian Income Tax Act, 1922. It was observed by the High Court that on a plain reading of Sub-section (3) of Section 66 of the income Tax Act, it is clear that there is no authority vested in the High Court to condone any delay or to give any benefits to the assessee, if the order of the Tribunal is in accordance with law. The said judgment would be no authority to contend that a Court would have no powers under Section 5 of the Limitation Act to condone the delay, if application of the Section is not expressly excluded. In the said matter the High Court was considering the provisions as contained in the Limitation Act, 1908. In the preliminary paragraphs of this judgment, we have already observed that Section 29 of the 1963 Act makes a departure from Section 29 of the 1903 Act.
24. The judgment in the matter of Hiranand Ramsukh (supra) does not envisage that the High Court in the matters of Section 130-A of the Customs Act would have no powers.
25. The judgment in the matter of Hajee Mehboob Bux Ehhan Illahi, (supra) is dated 11.10.1949. The High Court had observed that under Section 66 (3) of the Indian Income Tax Act, 1922 the High Court can entertain an application only when the Appellate Tribunal has wrongly decided that the application under Section 66 (1) is time-barred, while, as a matter of fact, the application was within time. It was observed that the High Court has not been given any power under Sub-section (3) of Section 66 to consider whether there was sufficient cause for the delay, nor has the Court any power similar to the power under Section 5 of the Indian Limitation Act, to condone the delay. The judgment in the matter of Hajee Mahboob Bux Ehhan Illahi (supra) has no application at all. It is to be seen that Section 5 of the Limitation Act, relates to extension of prescribed period in certain cases. It reads as under :
"5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
26. According to Section 5 of the Limitation Act, 1963 any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Unmistakably the power to condone the delay and extend the period of limitation is conferred upon the Court. In the matter of Hajee Mehboob Bux Ehhan Illahi, (supra) the question raised before the High Court was that the Tribunal was not justified in observing that there was no sufficient cause for condonation of delay or for extension of the period prescribed under the Act, by virtue of Section 5 of the Limitation Act, under the circumstances the High Court held that such questions could be raised before the High Court.
27. In the matter of Commissioner of Income Tax, Delhi and Ors. v. Bansi Dhar and sons and Ors., (supra), the matter before the Supreme Court was in relation to inherent or incidental power of the High Court to grant stay of realisation or to grant injunction regarding recovery of tax during pendency of the reference. There again Section 66(1) of the Indian Income Tax Act, 1922 and Section 256 of the Indian Income Tax Act, 1961 were under Consideration. The Supreme Court observed that Section 66 of the Indian Income Tax Act, 1922 or Section 256 of the Income Tax Act, 1961 is a special jurisdiction of a limited nature conferred not by the Code of Civil Procedure or by the Charters or by the special Acts constituting such High Courts but by the special provisions of the Income Tax Act, 1922, or 1961 Act for limited purpose of obtaining High Court's opinion on question of law. The Supreme Court observed that it is merely advisory or consultative jurisdiction while appeals are kept pending before Tribunal. The Supreme Court further observed that the High Court has some inherent powers to act ex debito justitiae and to do real and substantive justice but such power relates to matters Of procedure and substantive rights of the parties. In the said matter, the Supreme Court observed that under Section 66 (1) of 1922 Act or Section 256 of 1961 Act, stay cannot be granted by the High Court. Present is not a case of that nature. Present is a case where proceedings have, been initiated on an application under Section 130-A of the Customs Act, 1962.
28. In the matter of Anoop Kumar v. Commissioner of Customs (Prev.), West Bengal (supra), a judgment of the Calcutta High Court, the question before the Court was that what is the scope of Section 130-A. The Calcutta High Court observed that jurisdiction of the High Court on a reference is confined only to a decision on a question of law raised and which is supposed to be an opinion of the High Court. The Court observed that it neither sits on appeal nor on revision of the order of the Tribunal; it is only an advisory jurisdiction. The Calcutta High Court observed that the High Court on a reference cannot do anything more than giving its opinion. The jurisdiction has to be confined within law, which confers the jurisdiction. It cannot travel beyond the same. There again the question of grant of stay was under consideration. The High Court observed that it could not grant stay. From the perusal of the said judgment, at least one thing is clear that proceedings under Section 130-A of the Customs Act are neither in exercise of appellate jurisdiction nor revision of the order of the Tribunal, it is only an advisory jurisdiction. In the said judgment the question of application of Section 5 of the Limitation Act or provisions contained in Sections 4 to 24 of the Act were not under consideration. The judgments of the Calcutta High Court and the Supreme Court simply say that the High Court in its advisory jurisdiction cannot grant stay.
29. The judgments on which strong reliance has been placed, in fact, are not applicable to the present facts of the case.
30. Reliance was also placed upon a judgment of the Supreme Court in the matter of Prakash H. Jain v. Marie Fernandas (Ms), (2003) 8 SCC 431. In the said matter, the Supreme Court was considering the question of the powers possessed by the rent control authority under the Maharashira Rent Control Act, 1999. The Supreme Court observed that questions of the nature raised have to be considered not only on the nature and character of the authority, whether it is a Court or not but also on the nature of powers conferred on such authority or Court, the scheme underlying the provisions of the Act concerned and the nature of powers, the extent thereof or the limitations, if any, contained therein with particular reference to the intention of the legislature as well, found expressed therein. The Supreme Court further observed that there is no such thing as any inherent power of Court to condone the delay in filing proceedings before a Court/authority concerned, unless the law warrants and permits it. The Supreme Court has clearly observed that a Court may not have inherent power to condone the delay unless the law warrants and permits it.
31. In the matter of Sakuru v. Tanaji, AIR 1985 SC 1279, while appreciating provisions of Andhra Pradesh (Telengana Area) Tenancy and Agricultural Lands Act the Apex Court Observed that provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure. The Supreme Court observed that even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of Section 5, of the Limitation Act shall be applicable to such proceedings. From this judgment of the Supreme Court it is again clear that provisions of Section 5 of the Limitation Act are applicable to the proceedings in "Courts."
32. Learned counsel for the respondents has placed his strong reliance upon a judgment of the Supreme Court in the matter Of Commissioner of Customs, Calcutta and Ors. v. Indian Oil Corporation Ltd. and Anr., (2004) 3 SCC 488 to say that when there are pari materia statutes and there is a judgment of the Supreme Court on pari materia statutes then the judgment of the Supreme Court shall cover the field occupied by the pari materia provisions. The argument has been raised basically on the ground that if under Section 66 of 1922 Income Tax Act or Section 256 of 1961 Act, provisions of Section 5 of the Limitation Act are not applicable then in pari materia provisions contained under Section 130-A of the Customs Act, 1962 the power to condone the delay would not vest in the High Court. In our opinion, the judgment of the Supreme Court in the matter of Commissioner of Customs, Calcutta v. Indian Oil Corporation Ltd., (supra) would have no application. There the Supreme Court was considering different provisions of law.
33. From the above referred discussions, it is clear that present proceedings, in this Court commenced on an application under Section 130-A is to be made to the High Court. It cannot be gain said that the High Court is a Court. Under the constitution of India, the High Court is the highest Court of a province and it possesses various powers under different provisions of the different Acts. It is nowhere said in Section 130-A of the Customs Act that the High Court would be a Tribunal to give its decision in the matter of reference. In fact, the High Court has been authorised to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. The High Court is not constituted by local statute. Article 214 of the Constitution of India ordains that there shall be a High Court for each State. According to Article 215, every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Article 216 provides that every High Court shall consist of a Chief Justice and such other Judges, as the President may from time to time deem it necessary to appoint. The High Court is not a Tribunal. In fact, even under the Representation of People Act, 1951 when the High Court hears an election petition, it does not become an election tribunal but it retains its character of a Court.
34. We will again revert back to the provisions of Section 29 of the Indian Limitation Act, 1963. Sub-section (2) of Section 29 provides tht where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. We have already observed that if a period of limitation is prescribed under the special or local law the Section 3 of the Limitation Act, shall stand amended to that extent and in the given case the provisions contained in Sections 4 to 24 shall apply. These provisions contained in Sections 4 to 24 shall not apply if those are expressly excluded by such special or local law. We have already observed that for excluding an application of Sub-section (2) of Section 29 it has to be shown that the special statute, special law or local law expressly excludes application of Sections 4 to 24 of the Limitation Act. In the present matter, Section 130-A of the Customs Act does not specifically exclude the application of Section 29(2) of the Act. If that be so, Section 5 which comes within constellation of Sections 4 to 24 of the Limitation Act would apply.
35. We have already observed that Section 2(b) defines an "application" to mean that it includes a petition. Section 5 of the Limitation Act, as observed would apply with its full effect because the present proceedings are before the Court and the initiation of the proceedings under Section 130-A are proceedings based on an application. Section 5 of the Limitation Act clearly provides that any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. In our considered opinion, Section 29(2) applies to the present facts of the case because Section 130-A, provides a different limitation than what is prescribed under the schedule of the Indian Limitation Act of 1963. Section 3 shall apply as if such period was the period prescribed by the schedule and as there is no express provision excluding application of Sections 4 to 24 as provided under the Customs Act, Section 5 would apply. At this stage we would also prefer to refer to a judgment of the Supreme Court in the matter of Shaik Saidulu @ Saida v. Chukka Yesu Ratnam and Ors., (2002) 3 SCC 130. In the said matter the question before the Supreme Court was that an election petition under the provisions of Hyderabad Municipal Corporations Act, 1955 is an application or not. The Supreme Court observed that though the period of limitation for challenging the election petition, under the Act, is provided under Section 71 (2) of the Act, yet the Section or the Chapter in which it appears, does not stipulate as to the applicability or non-applicability of the provisions of the Limitation Act. The Supreme Court observed that Section 671 of the Act, appearing in the part of miscellaneous provisions under the Act, provides that in computing the period of limitation, fixed for an appeal or application, referred to in the Act, the provisions of Sections 5, 12 and 13 of the Limitation Act shall, so far as may be, apply. The Supreme Court further observed that according to the dictionary meaning, the word "application" could be understood in a generic sense as a prayer made to an authority for some relief to set aside an order of another authority. According to the Supreme Court, the word "application", as used in Section 671 of the Act, would include within its ambit an election petition wherein a voter or the candidate makes the prayer to the Court and seeks the redressal of his grievances regarding the conduct of the elections. From the said judgment of the Supreme Court which has taken into consideration its earlier judgments, it is clear that if there is no exclusion of the applicability of Section 5 of the Limitation Act and in a given matter where provisions of Section 5 of the Limitation Act apply, the right of the person to seek condonation of delay cannot be defeated.
36. Taking into consideration the totality of the circumstances we must observe and hold that provisions of Section 5 of the Limitation Act would be applicable to the present proceedings under Section 130-A of the Customs Act, 1962 and the High Court being a Court is entitled to condone the delay in filing the application provided sufficient cause for not filing the application within the stipulated period is shown.
237. Coming to the merits of the application this Court must observe that IA No. 2619 of 2002, an application under Section 5 of the Limitation Act makes out a case for condonation of delay. The petitioner has justified the period spent at different departmental levels. According to them, the copy was received on 23.7.2001 and thereafter the matter was placed before one or the other authority. Present is not a case where the application is hopelessly barred by time. In fact, present is a matter where the delay is only of three days. The Supreme Court in catena of cases has said that provisions as contained under Section 5 of the Limitation Act, should be liberally construed, it should not be used as a sword to strike on the rights of the parties but the Court should consider that whether there is unexplained delay and that whether the party acted with diligence or not. Taking into consideration the totality of the circumstances we are of the considered opinion that the petitioner has made out a case for condonation of delay. The aforesaid IA is allowed. The delay in filing the application is condoned.
38. Let the matter be placed for further consideration on question of admission.
Nagendra Rai, J.--I agree.
Order accordingly.