Rajasthan High Court - Jaipur
M/S A G Engineering Services vs Commissioner Of Central Excise Jaipur on 7 November, 2013
Author: Ajay Rastogi
Bench: Ajay Rastogi
DB Central Excise Appeal No.28/2012 M/s Siddharth Tanks & Vessels Pvt. Ltd. Vs. The Commissioner of Central Excise Jaipur-I & Ors. DB Central Excise (Service Tax) Appeal No.22/2012 M/s A.G. Engineering Services Vs. The Commissioner of Central Excise Jaipur-I Date or order : 7.11.2013 Hon'ble Mr. Justice Ajay Rastogi Hon'ble Mr. Justice JK Ranka Mr. Gunjan Pathak, for appellants. Mr. Sarvesh Jain Mr. Tej Prakash Sharma, for respondents.
Since both these appeals involves common question regarding applicability of Sec.5 & Sec.29(2) of of the Limitation Act, the matters are analogously heard and are decided by this present order.
Earlier when the matter came up before us on 10.4.2013, after hearing counsel for appellant, we framed the substantial question of law for considration that "Whether Sec.5 and Sec.29(2) of the Limitation Act would apply to appeal under Sec. 35 of the Central Excise Act, 1944" and notices were issued to the respondent to address on the legal question which emerges for consideration.
Ordinarily, after the order of admission there was no occasion for the registry to list the matter but as there is stay application filed along with appeals, the matter came up before us at orders stage.
At this stage, counsel for respondent Mr. Sarvesh Jain pointed out that substantial question which has been framed by this Court for consideration has already been answered by the Apex Court much before filing of instant appeal and relied upon the judgment in Singh Enerprises Vs. Commissioner of C.Ex., Jameshedpur reported in 2008(221) E.L.T. 163 (S.C.), operative portion whereof reads ad infra-
"The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to Sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period"
Further in Commissioner of Customs & Central Excise Vs. Hongo India (P) Ltd. reported in 2009 (236) E.L.T. 417 (S.C.) it was observed which reads ad infra-
18. In the earlier part of our order, we have adverted to Chapter VIA of the Act which provides appeals and revisions to various authorities. Though the Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to Appellate Tribunal. Also an additional period of 90 days in the case of revision by Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, the Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd., Noida (supra). Commissioner of Customs, Central Excise, Noida is the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and Ors. MANU/SC/0015/2008 : 2008(221)ELT163(SC) concluded that "the High Court was justified in holding that there was no power for condonation of delay in filing reference application."
19. As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision"
This was further considered in the latter judgment in Amchong Tea Estate Vs. Union of India reported in 2010 (257) E.L.T. 3 (S.C.) and the operative portion whereof reads ad infra-
7.We are unable to agree with the aforesaid view propounded by the learned counsel for the appellant for the simple reason that under the proviso of Sec.35 a period of limitation came to be prescribed which being a special law would override the general law as provided in Sec.35 of the Act. In this connection we may rely on a decision in Singh Enterprises V. Commissioner of Central Excise Jamshedpur & Ors. reported in (2008) 3 SCC 70), wherein this Court has held that the proviso to sub-section (1) of Sec.35 makes the position crystal clear that the Appellate Authority has no power to condone the delay beyond the period of 30 days and that the language used makes the position clear that the Legislature intended to entertain the appeal by condoning the delay only upto the 30 days and not 60 days".
And relying upon the judgment of Apex Court, the Division Bench of this Court also dismisssed the appeal on the substantial question which has been framed by us reported in 2011(24) STR 651. After judgment was brought to our notice, we referred the judgment of Apex Court in our earlier order dt.6.11.2013 and afforded opportunity to the counsel for appellant to address as to how substantial question which was framed by this Court vide order dt.10.4.2013 still requires consideration.
Counsel for appellant has tried his level best to convince this Court that all these judgments are distinguishable on its own facts, however, on specific question put to him as to whether he was aware of these judgments referred to in our order dt.6.11.2013, he submits that he was completely unaware of and tendered apology that because of ignorance he could not brought this fact to the notice of the Court when the matter was heard for admission on 10.4.2013.
Ignorance of the judgment of Apex Court cannot be considered as an excuse and it is always expected from the lawyer to come prepared and take note of the judgments of the Apex Court and of this Court before the matter is being argued before the Court and that is the only way to provide assistance to the Court for dispensation of justice to the litigatnt.
However, we are not inclined to proceed in the matter any further but as a matter of caution we would like to observe that the lawyer must remain conscious that whenever matter is being argued he is supposed to be aware of the law on the subject and judgments of Apex Court and also of this Court being a part for dispensation of justice but taking note of the statement which has been made before us by counsel for appellant of his ignorance regarding judgment referred to, we are not inclined to take any further action.
In the light of judgment referred to, the substantial question of law which was framed by this Court vide order dt.10.4.2013 no more remains res integra to be considered by this Court.
In view thereof, instant appeals and the stay applications stands dismissed.
[JK Ranka),J. [Ajay Rastogi], J. dsr/-
"All corrections made in the judgment/order have been incorporated in the judgment/order being emailed"
Datar Singh P.S.