Meghalaya High Court
M/S Saj Food Products Pvt. Ltd. vs . State Of Meghalaya & Ors on 28 January, 2020
Bench: Mohammad Rafiq, W. Diengdoh
Serial No.02
Supplementary List
List
HIGH COURT OF MEGHALAYA
AT SHILLONG
CRP No. 32/2019 with
MC [CRP] No.17/2019
Date: 28.01.2020
M/S Saj Food Products Pvt. Ltd. Vs. State of Meghalaya & ors
Coram:
Hon'ble Mr. Justice Mohammad Rafiq, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Dr. B.P. Todi, Sr. Adv. with
Dr. A. Todi, Adv.
Ms. P. Agarwal, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Ms. S.G. Momin, Sr. GA
i) Whether approved for Yes reporting in Law journals etc.:
ii) Whether approved for publication Yes/No
in press:
Per Mohammad Rafiq, CJ,
1. This Civil Revision Petition has been filed by M/S Saj Food Products Pvt. Ltd. challenging the judgment dated 15.12.2015 passed by the Appellate Tribunal i.e., Meghalaya Board of Revenue, Shillong whereby the appeal filed by the petitioner against the judgment dated 23.01.2015 passed by the Commissioner of Taxes, Meghalaya, Shillong, has been dismissed, upholding decision of the Commissioner of Taxes that the item „Rusk‟ has to be treated as taxable item under residuary entry of Schedule IV of the Meghalaya Value Added Tax Act, 2003 (in short „the Act of 2003‟) rather than treating it as an exempted item under the specific entry of "Branded Bread" specified under Entry 57 of Schedule I of the Act of 2003.
2. The facts of case are that the petitioner is a private limited company engaged in the trade of items such as biscuits, cakes, cookies, rusk bread CRP No. 32 of 2019 Page 1 and other bakery and confectionery products within the State of Meghalaya. It is registered as a dealer in the State of Meghalaya under the Act of 2003 under the jurisdiction of the Superintendent of Taxes, Circle- II, Shillong. The petitioner was assessed to tax and interest vide assessment order dated 06.06.2013 by the Assessing Authority namely, the Superintendent of Taxes, Circle-13, Shillong, for nine quarters ending 31.03.2011 to 31.03.2013 whereby, tax was levied on item „Rusk‟. The case set up by the petitioner before the Assessing Authority was that „Rusk‟ is a form of „bread‟ and is an exempted item falling under the category of „Bread‟ under Schedule-I of the Act of 2003 with NIL rate of tax. The Assessing Authority however, taking recourse to the definition of „manufacture‟ under the Act of 2003, levied tax on „Rusk‟ under the residuary entry of Schedule-IV at the rate of 13.5% instead of treating it as an exempted product in Schedule-I under the entry „Bread‟. According to the petitioner, the Assessing Authority failed to appreciate that rusk is a form of bread and is in the nature of toasted bread and does not involve any manufacturing process.
3. The petitioner preferred a Revision Petition against the order of the Assessing Authority before the Commissioner of Taxes, Meghalaya, which was dismissed vide order dated 23.01.2015. The petitioner then preferred a statutory appeal before the Appellate Tribunal i.e., the Meghalaya Board of Revenue, under Section 69 of the Act of 2003 which was contested by the respondents who filed their affidavit-in-opposition. The Meghalaya Board of Revenue upheld the order passed by the Revisional Authority dated 23.01.2015 and dismissed the appeal vide order dated 15.12.2015. The petitioner then filed review petition before the Meghalaya Board of Revenue which was dismissed vide order dated 03.06.2019.
4. The petitioner initially filed a writ petition before this Court on 26.08.2019. On being apprised of the fact that instead of a writ petition, a Revision Petition would be maintainable, the petitioner withdrew the same and filed the present Revision Petition on 03.09.2019 challenging both the CRP No. 32 of 2019 Page 2 original order dated 15.12.2015 and order dated 03.06.2019 of the Meghalaya Board of Revenue, Shillong, dismissing the review petition. When the matter was listed in the Court on 05.09.2019, learned Advocate General raised an objection that the Revision Petition is required to be filed within 60 days from the date of receipt of copy of the impugned order. Learned counsel for the petitioner sought time to file appropriate application seeking condonation of delay and eventually filed application for condonation of delay on 09.09.2019. The respondent-State filed affidavit-in-opposition/objections thereto on 25.09.2019. The matter was heard on the said application.
5. Dr. B.P. Todi, learned Senior counsel appearing for the petitioner submitted that the Meghalaya Board of Revenue disposed of the Revision Petition vide order dated 23.01.2015. Thereafter, the petitioner filed petition seeking review of the judgment dated 15.12.2015 of the Meghalaya Board of Revenue under Section 7 of Assam Board of Revenue Act, 1962 (as adopted by Meghalaya) on 01.02.2016. The review petition was not taken up for consideration for quite some time. The petitioner filed WP(C) No. 126 of 2016 with the prayer to issue a writ of mandamus directing the Board of Revenue to consider the same. After several days, the Board finally dismissed the review petition vide order dated 03.06.2019, which was conveyed to the petitioner vide letter dated 10.07.2019 and received by him on 13.07.2019. The petitioner then approached this Court by filing WP(C) No. 336 of 2019 before this Court on 26.08.2019 seeking remedy against the judgment of the Board of Revenue on 15.07.2019. The said writ petition was taken up for arguments on 28.08.2019. However, on objection of the State about maintainability of the writ petition, the petitioner withdrew the writ petition and thereafter, filed the instant Civil Revision Petition on 02.09.2019.
6. The first and foremost contention of Dr. B.P. Todi, learned Senior Counsel appearing for the petitioner, is that applicability of Section 5 of the Limitation Act to Section 70 of the Act of 2003 has not been excluded either expressly or even by necessary implication. It is argued that Section CRP No. 32 of 2019 Page 3 110 of the Act of 2003 merely provides that in computing the period of limitation under Chapter X, provisions of Sections 4 and 12 of the Limitation Act shall, so far as may be, apply. Chapter X contains the provisions with regard to offence and penalties, whereas provisions with regard to appeal, revision and review, are incorporated in Chapter VII. In view of Section 29(2) of the Limitation Act, it cannot be said that Sections 4 to 24 of the Limitation Act stand excluded by necessary implication. No doubt, in Patel Brothers Vs. State of Assam and Another, (2017) 2 SCC 350, the Supreme Court was interpreting Section 84 of the Assam Value Added Tax Act, 2003, but that provision was contained in the same Chapter, which provided remedy appeal to the Appellate Tribunal under Section 80 and remedy of revision to the High Court under Section 81. Therefore, the provision in Section 84 of the Act of 2003 that in computing the period of limitation under this Chapter, the provisions of Sections 4 and 12 of the Limitation Act shall, so far as may be apply, was held to have by necessary implication excluded provisions of Section 5 of the Limitation Act. However, no such exclusion for Section 5 can be read for a Revision Petition filed before the High Court of Meghalaya under Section 70 of the Meghalaya Value Added Tax Act, 2003. Respondent- State is therefore not justified in contending that Section 5 of the Limitation Act would not by necessary implication stand excluded.
7. Dr. B.P. Todi, learned Senior Counsel, argued that since the petitioner initially filed a writ petition and on objection being raised by the respondents about its maintainability, he withdrew the same to file the present Revision Petition, the period consumed by the petitioner in filing writ petition and also the period which the Board of Revenue itself consumed in deciding the revision, would be liable to be excluded. He relied on the judgements of the Supreme Court in the case of State of Manipur & Ors. v. All Manipur Regular Post vacancies S.T.A. & Ors.:(1997) 10 SCC 385, Mohd. Unaramuddin v. State of Andra Pradesh: (1994) 5 SCC 118 and Colgate Palmotive Co. V. Hindustan Rimmer & Ors:(1994) SCC 364 to submit that according to the law laid CRP No. 32 of 2019 Page 4 down therein, the period from the date of pronouncement of judgment till disposal of review petition is liable to be excluded in computing the period of limitation for further filing of appeal/revision. Even then, the petitioner by way of abundant caution filed an application for condonation of delay.
8. Per contra, Mr. A. Kumar learned Advocate General opposed the application for condonation of delay and argued that the petitioner has approached this Court in the instant Revision Petition purportedly by virtue of provisions under Section 70 of the Act of 2003 against the judgement of the Appellate Tribunal i.e., the Board of Revenue. It is submitted that Sub-section (1) of Section 70 of the Act of 2003 provides for preferring a revision before the High Court within sixty days from the date of receipt of the judgement but this does not contain any provision for condonation of delay on showing sufficient cause if the same is not filed within the period of sixty days. The application for condonation of delay filed therewith is therefore not maintainable. It is argued that the Act of 2003 is a self-contained Code. In the absence of specific provision enabling the High Court to condone the delay, the application for condoning the delay cannot be entertained. Learned Advocate General referred to Sections 68 and 69 of the Act of 2003 which specifically provide for remedy of appeal before the High Court and Appellate Tribunal respectively. In both these provisions, 60 days has been prescribed as the period of limitation. But Section 68 (b) has provided that High Court may admit an appeal preferred after the prescribed period of 60 days on being satisfied that assessee had sufficient cause for not presenting appeal within that period. Section 69 in its Sub-section (2) provides that the Appellate Tribunal may admit an appeal on expiry of 60 days if it is satisfied that the appellant had sufficient reason for not filing the appeal within the time specified in Sub-section (1), provided it is filed within one year. There is no such provision in Section 70 supra.
9. Learned Advocate General submitted that Sections 68 (b), 69 (2) and Section 74 specifically provided for condonation of delay, along with CRP No. 32 of 2019 Page 5 the outer limit within which it can be granted. The Act of 2003 is thus a complete Code in itself. The application for condonation of delay is therefore liable to be dismissed. Learned Advocate General submitted that the Supreme Court in Commissioner of Custom and Central Excise v. Hongo India Private Limited & Anr.: (2009) 5 SCC 791, held that the nature of remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. It was further held that where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, those provisions and scheme of special law exclude their operation. Learned Advocate General further submitted that the Supreme Court in Patil Brothers Vs. State of Assam & Others, (supra), held that the Court cannot interpret the law in such a manner so as to read in the Act an inherent power of condoning delay by invoking Section 5 of the Limitation Act, 1963 and to supplement the provisions of the VAT Act which excludes the operation of Section 5 by necessary implication. It is argued that the Assam VAT Act and Meghalaya VAT Act, are in para materia with each other and therefore, ratio of the judgement of the Supreme Court in Patel Brothers v. State of Assam & Ors.: (20017) 2 SCC 350 would apply to present case with full force.
10. Learned Advocate General further argued that Section 69 the Act of 2003 provides for remedy of appeal before the Appellate Tribunal. The aggrieved party can prefer Revision Petition thereagainst before the High Court under Section 70 of the Act of 2003. This Act however nowhere provides remedy of review of the order of the Appellate Tribunal exercising power under Section 69 of the Act. Review Petition being not maintainable before the Board of Revenue, the petitioner cannot, even otherwise, seek exclusion of time consumed by the Board of Revenue.
CRP No. 32 of 2019 Page 6 Even otherwise rejection of the review petition does not result in merger of the main order therewith. The limitation for filing Revision Petition in any case has to be counted from the date of the original order.
11. Learned Advocate General in support of his arguments has also relied on the judgments of the Supreme Court in (2011) 14 SCC 160: Har Devi Asnani v. State of Rajasthan & Ors.,(1974) 2 SCC 133: Hukumdev Narain Yadav v. Lalit Narain Mishra, Civil Appeal Nos. 8276-8277 of 2019:Superintendent Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper & Anr. v. Excise and Taxation Officer, Sunder Nagar/Assessing Authority and (2012) 6 SCC 782: DSR Steel (Private) Limited v. State of Rajasthan & Ors.
12. We have given our anxious consideration to rival submissions and perused the material on record.
13. The core question that arises for consideration in this case is whether the High Court, while entertaining a Revision Petition against the order of the Appellate Tribunal (the Board of Revenue), by recourse to Section 5 of the Limitation Act, 1963, possesses the power to condone the delay. In the present case delay of 1357 days has been occasioned in filing of the present Revision Petition. We have already taken note of the reasons which the petitioner has furnished to explain the delay, which according to him constitute sufficient cause within the meaning of Section 5 for condonation of delay. We shall however not be required to go into those reasons if eventually we are persuaded to hold that the provisions of Section 5 of the Limitation Act, 1963 are not applicable for condonation of delay in filing Revision Petition under Section 70 of the Act of 2003.
14. In our considered view, the scheme of the Act of 2003 is though slightly different from the one in Assam Value Added Tax Act, 2003, but what is common between them is that both enactments are intended to be complete code in themselves. The provisions relating to appeal, revision and review are contained in Chapter VII of the Act of 2003. Section 65 thereof provides for remedy of appeal to the assessee against the order of CRP No. 32 of 2019 Page 7 assessment before the Prescribed Authority within 45 days from the receipt of a notice of demand in respect thereof but with the stipulation that appeal may be entertained within such further period as may be allowed by the said authority for the cause shown to his satisfaction. Similarly, Section 66(1) of the Act of 2003 provides that the Commissioner may on his own motion, revise any assessment made or order passed by a person appointed under sub-section (1) of section 25 to assist him. Sub-section (2) of Section 66 also provides the remedy of revision to the aggrieved person against the assessment made or any order passed by a person appointed under Section 25(1) of the Act before the Commissioner, subject to such rules as may be prescribed. Section 67 of the Act of 2003, inter alia, confers power on the person appointed under Section 25(1) of the Act, the Appellate Authority and the Revisional Authority, to review their order either on their own or upon application. Section 68 of the Act of 2003 in its Clause (a) provides for remedy of appeal to any assesses against an order passed by the Commissioner under Sections 66 or 67 before the High Court within sixty days from the date on which the order was communicated to him. However, Clause (b) of Section 68 provides that the High Court may admit an appeal preferred after the period of sixty days if it is satisfied that the assessee had sufficient cause for not preferring the appeal within that period. Section 69(1) provides that a person dissatisfied with the decision of the Appellate Authority and Revisional Authority may, within sixty days, after being served with notice of the decision, file a second appeal before the Appellate Tribunal. Sub-section (2) of Section 69 similarly provides that the Appellate Tribunal may admit an appeal even after expiry of sixty days if it is satisfied that the appellate had sufficient reason for not filling the appeal within the time specified in sub-section (1), provided it is filed within one year. Section 70(1) of the Act of 2003 however provides for remedy of revision before the High Court against the decision of the Appellate Tribunal or the Commissioner within sixty days after being notified of such decision but without any discretion to the High Court to entertain Revision Petition after expiry of such period of sixty days.
CRP No. 32 of 2019 Page 8
15. What emerges from analysis of the scheme of the Act of 2003 is that while Section 65 has provided forty-five days as the period of limitation for filing an appeal to the prescribed authority against the order of assessment, but at the same time also confers discretion on the Appellate Authority to entertain appeal within such further period as it may allow on the appellant showing the cause to its satisfaction. Section 68, which provides for remedy of appeal before the High Court to an assessee against the order passed by the Commissioner under Sections 66 and 67 within sixty days from the date the impugned order is communicated to him, also in Clause (b) contemplates that the High Court may admit the appeal preferred after sixty days if it is satisfied that the assessee had sufficient cause for not preferring the appeal within the stipulated period. Likewise Section 69(1)(a) of the Act of 2003, which provides the remedy of filing second appeal before the Appellate Tribunal against the judgement of the Appellate Authority and the Revisional Authority, within sixty days after being served with notice of the impugned decision, also confers power on the Appellate Tribunal to admit the appeal filed after sixty days if it is satisfied that the appellant had sufficient reason for not filing the appeal within the time prescribed under sub-section (1), provided such appeal is filed within one year.
16. Significantly enough, neither Section 66 nor Section 67 of the Act of 2003 prescribe for any definite period of limitation within which the order can be, revised or reviewed, suo motu or on the application filed by an affected party. Section 66, which provides for remedy of revision, suo motu or at the instance of the aggrieved party, against the order of assessment or order passed by a person appointed under Section 25(1) of the Act, does not give any period of limitation within which such revision can be entertained. Similarly, Section 67 of the Act of 2003, which confers powers on the person appointed under Section 25(1), the Appellate Authority and Revisional Authority, for reasons to be recorded in writing, to review any order passed by any of them, either on their own or upon application, also does not prescribe any limitation period. It is CRP No. 32 of 2019 Page 9 trite that even if a particular time period of limitation has not been prescribed for filing revision or review, yet it can be entertained only if the same is filed within reasonable time. In other words, the Revisional Authority or the Reviewing Authority would have the discretion to refuse or to entertain the revision/review if the same has been preferred with unreasonable delay. Section 68 has conferred power on the High Court to admit the appeal against the order passed by the Commissioner under Sections 66 or Section 67 of the Act even after expiry of the period of limitation of sixty days if the appellant is able to satisfy that he had sufficient cause for not preferring the appeal within that period. In this instance also, even though no period of limitation has been provided for entertaining such appeal after initial period of sixty days has expired, yet such appeal has to be filed within reasonable time on the same analogy on which revision/review filed under Sections 66 and 67 respectively can be entertained. Similarly, Section 69 (1) of the Act of 2003 has provided for remedy of second appeal before the Appellate Tribunal against the decision of the Appellate Authority and the Revisional Authority, within sixty days. However, Section 69(2) vests the Appellate Tribunal with the power to admit the appeal even after sixty days if it is satisfied that the appellant had sufficient reason for not filing the appeal within the aforesaid time provided it is filed within one year. Obviously, here the discretion of Appellate Tribunal has been restricted allowing it to entertain the appeal beyond sixty days with a rider that such appeal in any case has to be filed within one year, which shall be counted from the date of the notice of the decision to the aggrieved party. It is in such scheme of legislation that the remedy of Revision Petition against the decision of the Appellate Tribunal or the Commissioner has been provided before the High Court under Section 70 of the Act of 2003, which has to be necessarily filed within sixty days, by the assessee after being notified of the decision. Unlike the provisions of Sections 65, 67, 68 and 69 of the Act of 2003, no discretion has been conferred on the High Court to entertain a Revision Petition filed after expiry of sixty days from the date the assessee is notified of the decision. This leads to two conclusions;
CRP No. 32 of 2019 Page 10 firstly, the Act of 2003 is a complete Code by itself and secondly, applicability of Section 5 of the Limitation Act to Revision Petition filed under Section 70 of the Act of 2003 stand excluded by necessary implication.
17. Matter can be approached from another angle as well. Section 110 of the Act of 2003 specifically provides for applicability of only two provisions of the Limitation Act, namely, Sections 4 and 12, in computing the period of limitation under Chapter X of the Act of 2003. Had the legislature intended to extend the other provisions of the Limitation Act, including Section 5 thereof, to Chapter VII of the Act of 2003, it would have certainly indicated so. It may be significant to note at this stage that Section 110 of the Act of 2003 was amended by the Meghalaya Commencement Value Added Tax (Amendment) Bill, 2005, which was published in the Meghalaya Extra Ordinary issue of the Gazette dated 30th April, 2005, to substitute Chapter VI by Chapter X. It is thus evident that neither at the time of framing the original enactment when Sections 4 and 12 of the Limitation Act were applied to provisions contained in Chapter VI pertaining to return and payment of tax, assessment etc. nor after amendment when Chapter X was introduced in place of Chapter VI, which pertains to "Offences and Penalties", the legislature intended to apply Section 5 of the Limitation Act to Chapter VI of the Act of 2003. This reinforces the two conclusions that the Act of 2003 is intended to be a complete Code in itself and Section 5 of the Limitation Act has been excluded by necessary implication.
18. The Supreme Court in Hukumdev Narain Yadav Vs. Lalit narain Mishra - (1974) 2 SCC 133, has elaborated on the law as to when a particular legislation can be held to be a complete Code by itself, in the following terms:-
"17. ... but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the CRP No. 32 of 2019 Page 11 relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject- matter and scheme of the special law exclude their operation. ...."
19. The Supreme Court in Union of India Vs. Popular Construction Company, (2001) 8 SCC 470, while dealing with the question as to whether Section 5 of the Limitation Act, 1963 would be applicable for condoning the delay in filing application under Section 34 of the Arbitration and Conciliation Act, 1996, which being a special law provided period of limitation, different than the one prescribed under the Limitation Act, held that Section 29(2) of the Limitation Act, 1963 will have no application in proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside arbitral award. The Supreme Court made following observations in para 10 of the report:-
"10. This decision recognises that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act.It is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. As has been said in Hukumdev Narain Yadav v. Lalit Narain Mishra reported in (1974) 2 SCC 133 (SCC p. 146, para 17).
"If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act."
20. The Supreme Court in Gopal Sardar Vs. Karuna Sardar, (2004) 4 SCC 252, was dealing with a case where the appellant tried to take forcible possession of the plot adjoining to the east of his land. The case of the respondent was that she came to know on 18.09.1985 that the appellant had purchased the said plot on 17.08.1979. She filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 in the Munsif Court claiming right of pre-emption on the basis of vicinage CRP No. 32 of 2019 Page 12 being the owner of adjoining plots of land purchased on 20.07.1966 and 01.06.1981.The objection was raised by the appellant that the application was time barred. The Munsif Court condoned the delay but dismissed the application on merits. The Appellate Court dismissed the appeal both on the ground of limitation as well as merits. The High Court held that the period under Article 137 of the Limitation Act, 1963 was applicable to the case. Therefore, it upheld the order passed by the Munsif Court and remanded the case to the court below for deciding the application afresh. The matter was then taken to the Supreme Court against the judgement of the High Court. Allowing the appeal, the Supreme Court in para 7 and 8 of the report held as under:-
"7. In Section 8 of the Limitation Act there is reference to suits to enforce rights of pre-emption stating therein that nothing in Section 6 or Section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application. In Article 97 of the Schedule appended to the Limitation Act under the heading suits relating to miscellaneous matters there is reference to enforcement of rights of pre-emption. Thus, there is reference to suits in Section 8 and Article 97 of the Limitation Act, but there is no reference to an application for enforcement of right of pre-emption. Having regard to the fact that the Act is a self- contained Code in relation to the enforcement of rights of pre- emption and looking to the provisions of the Limitation Act, as stated above, it appears to us that when one applies for enforcement of rights of pre- emption under Section 8 of the Act, the proceedings initiated are in the nature of a suit. The words "application" and "suit" have been defined in Section 2(b) and 2(l) of the Limitation Act. "Application" includes a petition but "suit" does not include an appeal or an application. The Division Bench of the Calcutta High Court in Serish Maji (supra), after elaborate consideration, referring to various decisions and on analysis of different provisions, in paras 25 to 50 of the judgment has concluded that a proceeding initiated by an application of Section 8 is to be construed as a "suit" for the purpose of the Limitation Act. We have good reason to approve the said view. This being the position, Section 5 of the Limitation Act is not attracted to the proceedings initiated under Section 8 of the Act. The right conferred under Section 8 is a statutory right. Even otherwise, in our view, the position as regards to applicability of Section CRP No. 32 of 2019 Page 13 5 of the Limitation Act to an application under Section 8 of the Act does not get altered. As already stated above, the Act is a self- contained Code inasmuch as the Act provides to enforce the rights of pre-emption, forum is provided, procedure is prescribed, remedies including the appeals and revisions are provided, penalties are indicated for non- compliance of the orders and powers are given for restoration of land. Further period of limitation is also specifically prescribed to make an application under Section 8 of the Act and for preferring appeals or revisions under the provisions of the Act. All these and few other provisions are clear enough to indicate that the Act is a complete Code in itself dealing with the rights of pre-emption. Second proviso to Section 14H specifically provides for the application of Section 5 of the Limitation Act in the matter of preferring an appeal or revision. Section 14-O(1) specifically enables the appellate authority to allow to prefer an appeal even after the expiry of the period of limitation prescribed on showing sufficient cause. Similarly, the second proviso to Section 19(2) of the Act expressly provides for application of Section 5 of the Limitation Act to an appeal to be preferred under the said Section. Section 51A of the Act deals with preparation and revision of record-of-rights. Rule 26 of the Rules framed under the Act provides that every appeal under Section 51A of the Act is to be filed within one month from the date of passing of the order appealed against. The proviso to the said Rule states that an appeal may be admitted after the said period if the appellant satisfies that he had sufficient reasons for not preferring the appeal within the said period. Thus either Section 5 of the Limitation Act or its principles have been expressly and specifically incorporated in the various Sections afore-mentioned. In contrast although Section 8 of the Act prescribes period of limitation for applying to enforce pre-emption rights, it does not speak of application of Section 5 of the Limitation Act or its principles. If in the same Act, consciously and expressly, the Legislature has made provision for application of Section 5 of the Limitation Act or its principles expressly and specifically to other proceedings such as appeal or revision etc. and such a provision is not made for initiation of the proceedings under Section 8 of the Act, it necessarily follows that the Legislature did not intend to give benefit of Section 5 to the Limitation Act having regard to the nature of rights of pre-emption which is considered a weak right. xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx
8. There is yet another good reason for insisting that right of pre-emption must be exercised within the period specified under Section 8 of the Act so that the rights of purchasers of a CRP No. 32 of 2019 Page 14 land cannot be eclipsed for a long time. Right of pre-emption was sought to be exercised after six years and four years from the dates of transfer respectively as against the period of four months prescribed under Section 8 of the Act without any scope for extension of that period. Sub-section (3) was added to Section 8 of the Act by the West Bengal Land Reforms (Amendment) Act, 1972 w.e.f. 15.2.1971. Prior to 15.2.1971, an application under Section 8 was required to be made to the "Revenue Officer specifically empowered by the State Government in this behalf". This phrase was substituted by the phrase "Munsif having territorial jurisdiction" by the aforementioned amendment. Even after this amendment when an application is required to be made before the Munsif Court, no amendment was made to Section 8 of the Act either to apply Section 5 of the Limitation Act or its principles so as to enable a party to make an application after the expiry of the period of limitation prescribed on showing sufficient cause for not making an application within time. The Act is of 1955 and for all these years, no provision is made under Section 8 of the Act providing for condonation of delay. Thus, when Section 5 of the Limitation Act is not made applicable to the proceedings under Section 8 of the Act unlike to the other proceedings under the Act, as already stated above, it is appropriate to construe that the period of limitation prescribed under Section 8 of the Act specifically and expressly governs an application to be made under the said Section and not the period prescribed under Article 137 of the Limitation Act."
21. Ratio of the aforesaid judgement in Gopal Sardar, supra, would apply to the present case with full force both for proposition of law that the Act of 2003 in the present case is a self-contained complete code, as the Legislature specifically having incorporated the period of limitation and power of condonation on principles of Section 5 of the Limitation Act in various provisions of the Act but has consciously excluded the power of condonation of delay in Section 70 of the Act and also for the analogy that even after while amending Section 110 vide Notification dated 30th April 2005 substituting Chapter X by Chapter VII, it did not apply Section 5 of the Limitation Act to Chapter VI.
22. The Supreme Court in Fairgrowth Investments Ltd. Vs. The Custodian, (2004) 11 SCC 472, was dealing with a case where it was held that in view of Section 29(2) of the Limitation Act, 1963, the general rule, as far as Special and Local Acts are concerned, is that the specified CRP No. 32 of 2019 Page 15 provisions including Section 5 of the Limitation Act, 1963 will apply provided such Special or Local Act provides limitation different from that prescribed under the Limitation Act, 1963. It was further held that there is an additional requirement viz that the Special/Local Act does not expressly exclude the application of the Limitation Act. The word 'exclusion' also includes 'exclusion by necessary implication'. The Supreme Court in that case was dealing with a case where the appellant was notified by the Custodian under Section 3(2) of the Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992, on 23.11.2001 informing the appellant of the said notification and consequential attachment of the appellant's property, and asking it to furnish the details of the properties. The appellant filed petition for objections under Section 4(2) of the Act of 1992 on 08.10.2002 against the said notification. The Special Court rejected the petition solely on the ground that the same was filed beyond the limitation period of thirty days prescribed under Section 4(2). The matter was taken to the Supreme Court by the appellant contending that Section 4(2) prescribing limitation period is directory and non-compliance thereof did not warrant rejection of its petition. Section 5 of the Limitation Act would be applicable to the petition as according to Section 29(2) of the Limitation Act, the Act prescribes limitation period different from the period prescribed under the Limitation Act, 1963 and that does not expressly exclude the provisions of Sections 4 to 25 of the Limitation Act, including Section 5. The word 'exclusion' also includes 'exclusion by necessary implication'. The provision prescribing a time limit for filing a petition for objection under Section 4(2) of the Act is mandatory and there is no scope for reading in a power of court to dispense with the time limit on the basis of any principle of interpretation of statutory interpretation. The Supreme Court also in this respect considered the provisions of Section 10(3) of the Act of 1992, which provided for an appeal to the Supreme Court from any judgement, sentence or order of the Special Court within a period of 30 days from the date of such judgement, however, proviso to Section 10(3) of the Act empowered the Supreme Court to entertain the appeal even after expiry of CRP No. 32 of 2019 Page 16 the period of limitation of thirty days if the Court is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of limitation. But not providing similar power to condone delay under Section 4(2), the Parliament has consciously excluded such power of the Court in relation to Section 4(2) of the Act of 1992, held the Supreme Court.
23. We may in this connection usefully refer to the judgement of the Supreme Court in Commissioner of Customs and Central Excise Vs. Hongo India Private Limited, (2009) 5 SCC 791, which examined the scheme of the Central Excise Act, 1994, somewhat similar to the one which is contained in the Act of 2003. The question that fell for consideration before the Supreme Court in that case was whether the High Court had the power to condone the delay in presentation of the reference application under unamended Section 35-H(1) of the Central Excise Act, 1994, beyond the period prescribed, by applying Section 5 of the Limitation Act. Unamended Section 35-H dealt with reference application to the High Court. Under sub-section (1) thereof, such reference application could be preferred within a period of 180 days of the date upon which the aggrieved party is served with notice of an order under Section 35-C of the Central Excise Act. Section 35-H of the Central Excise Act did not provide for extension of the period of limitation by condonation of delay for filing the reference application to the High Court. Under the Scheme of the Central Excise Act, in the case of appeal to the Commissioner filed under Section 35, sixty days was provided as the period of limitation with a specific provision for condonation of delay upto further thirty days if sufficient cause was shown. Similarly, ninety days was prescribed as the period of limitation for filing appeal to the Appellate Tribunal under Section 35-B but sub-section (5) thereof conferred power on the Appellate Authority to condone the delay irrespective of the number of days, if sufficient cause is shown. Moreover, Section 35-EE of the Central Excise Act provided the remedy of revision before the Central Government within a period of ninety days and proviso CRP No. 32 of 2019 Page 17 thereto empowered the revisional authority to condone the delay for a further period of ninety days. However, despite the specific provision conferring power on various authorities for condonation of delay, Section 35-G of the Central Excise Act only prescribes period of 180 days as the period of limitation for filing reference application with no further clause empowering the High Court to condone the delay thereafter. A specific argument was raised before the Supreme Court by invoking Section 29(2) of the Limitation Act, 1963 that unless the provisions of Section 5 of the Limitation Act, 1963 were specifically excluded, the High Court would be competent to condone the delay by recourse to Section 5 of the Limitation Act, 1963. The Supreme Court, while repelling the argument, held as under:-
"30. In the earlier part of our order, we have adverted to Chapter VI- A of the Act which provides for appeals and revisions to various authorities. Though 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 the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference application to the High Court under Section 35-H, 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.
31. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd. [(2008) 3 SCC 73] The Commissioner of Customs, Central Excise, Noida was 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 35-H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. CCE [(2008) 3 SCC 70] concluded that:
(Punjab Fibres Ltd. case [(2008) 3 SCC 73], SCC p. 75, para 8) "8. ... the High Court was justified in holding that there was no power for condonation of delay in filing reference application."
32. As pointed out earlier, the language used in Sections 35, 35- B, 35-EE, 35-G and 35-H makes the position clear that an CRP No. 32 of 2019 Page 18 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.
33. 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."
"34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to the High Court.
35. It was contended before us 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. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, CRP No. 32 of 2019 Page 19 therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court."
24. The Supreme Court in Patel Brothers, supra, was dealing with the provisions of the Assam Value Added Tax Act, 2003. Section 81 thereof prescribed limitation period of sixty days within which a Revision Petition can be preferred. Section 80 thereof prescribed the period of limitation of sixty days for filing an appeal before the Appellate Tribunal against the order of the Appellate Authority under Section 79 and order passed by the authority lower in rank than a Deputy Commissioner with discretion to the Appellate Tribunal to admit an appeal filed after the expiry of sixty days if it is satisfied that the appellant had sufficient reason for not filing the appeal within the aforesaid time if it is filed within further period of 120 days. Similarly, Section 81 of the Assam Value Added Tax Act, 2003 provides remedy of revision against the order of the Appellate Tribunal or the Commissioner before the High Court, within sixty days after being notified of the impugned decision, nothing being said with regard to extended period within which the power of condonation of delay being conferred on the High Court. Section 84 of the Assam Value Added Tax Act, 2003, which appears in the same Chapter in which Sections 80 and 81 are contained, however, provides that in computing the period of limitation under this Chapter, the provisions of Sections 4 and 12 of the Limitation Act,1963 shall, so far as may be, apply. The Revision Petitions filed before the Guahati High Court were time barred by 335 days, however, the same were accompanied by applications under Section 5 of the Limitation Act, 1963, seeking condonation of delay. The Guahati High Court dismissed all such applications holding that the provisions of Section 5 of the Limitation Act, 1963, are not applicable.
25. When the Supreme Court was approached against the judgement of the Gauhati High Court in Patel Brothers, supra, their Lordships held that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, CRP No. 32 of 2019 Page 20 the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. It was further held that it is for the legislature to set right the deficiency, if it intends to give power to the High Court to condone the delay in filing Revision Petition under Section 81 of the VAT Act. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. The Supreme Court in Patel Brothers, supra, also held that scrutiny of the scheme of VAT Act goes to show that it is a complete code not only laying down the forum but also prescribing the time limit within which each forum would be competent to entertain the appeal or revision. Observations of the Supreme Court in para 20 of the report are apt to quote:-
"20. Thus, the approach which is to be adopted by the Court in such cases is to examine the provisions of special law to arrive at a conclusion as to whether there was legislative intent to exclude the operation of Limitation Act. In the instant case, we find that Section 84 of the VAT Act made only Sections 4 and 12 of the Limitation Act applicable to the proceedings under the VAT Act. The apparent legislative intent, which can be clearly evinced, is to exclude other provisions, including Section 5 of the Limitation Act. Section 29(2) stipulates that in the absence of any express provision in a special law, provisions of Sections 4 to 24 of the Limitation Act would apply. If the intention of the legislature was to make Section 5, or for that matter, other provisions of the Limitation Act applicable to the proceedings under the VAT Act, there was no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of the Limitation Act applicable to such proceedings, inasmuch as these two Sections would also have become applicable by virtue of Section 29(2) of the Limitation Act. It is, thus, clear that the Legislature intended only Sections 4 and 12 of the Limitation Act, out of Sections 4 to 24 of the said Act, applicable under the VAT Act thereby excluding the applicability of the other provisions. "
26. The analysis of the provisions discussed in earlier part of this judgement clearly shows that the Act of 2003, especially, Chapter VI with respect to remedy of appeal, revision and review, is a complete Code in itself. Wherever the legislature intended to provide period of limitation for CRP No. 32 of 2019 Page 21 filing of appeal, revision or review petition, it did so by specifically indicating the time period. In the case of revision or review, referable to Sections 66 and 67 respectively, the legislature has not provided any period of limitation. As would be evident from Sections 65, 68 and 69 of the Act of 2003, discretion has been conferred on the appellate authorities concerned to entertain the appeal even beyond the period of limitation. While conferring the discretion on the Appellate Tribunal under Section 69(2) of the Act to entertain the appeal against the decision of the Appellate Authority/Revisional Authority, even after sixty days, on sufficient cause being shown, a rider has been put that such appeal in any case should be filed within one year. Section 70 of the Act of 2003 simply provides for remedy of revision before the High Court against the decision of the Commissioner, within sixty days, but does not confer any discretion on the High Court to entertain the same beyond that period.
27. In view of the above discussion, we are inclined to hold that the applicability of Section 5 of the Limitation Act to Section 70 of the Act of 2003 stands excluded by necessary implication and therefore it would not be applicable to the RevisionPetition filed before the High Court under that provision. The application for condonation of delay being not maintainable, is accordingly dismissed. Consequently, the Revision Petition is also dismissed.
(W. Diengdoh) (Mohammad Rafiq)
Judge Chief Justice
Meghalaya
28.01.2020
"Sylvana PS"
CRP No. 32 of 2019 Page 22