Punjab-Haryana High Court
Commissioner Of Central Excise ... vs M/S Condor Power Product (P) Ltd on 27 August, 2009
Author: Jaswant Singh
Bench: Jaswant Singh
Central Excise Appeal No.81 of 2009(O&M) #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Central Excise Appeal No.81 of 2009(O&M)
Date of Order: 18.8.2009
Commissioner of Central Excise Delhi-IV, Faridabad
...Petitioner
Versus
M/s Condor Power Product (P) Ltd
....Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. S.S. Sandhu, Advocate for the appellant.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest? M.M. KUMAR,J This appeal filed under Section 35-G of the Central Excise Act, 1944 (for brevity "the Act") is directed against order dated 28.12.2006, passed by the CESTAT, New Delhi. Along with the appeal, an application under Section 5 of the Limitation Act, 1963 (for brevity "the Limitation Act") seeking condonation of 383 days in filing of the appeal has also been made by pleading various grounds.
At the hearing, we have confronted learned counsel for the revenue with the judgment of Hon'ble the Supreme Court rendered in the case of Commissioner of Customs & Central Excise v. Hongo India (P) Ltd 2009 (236) E.L.T 417, wherein it was held that the provisions of the Limitation Act have been excluded by necessary intendment. The view of Central Excise Appeal No.81 of 2009(O&M) #2# their Lordships is discernible from para 32 of the judgment, which reads thus:
"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 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."
Mr. Sandhu, learned counsel for the appellant-revenue however, has not been able to meet the aforesaid observation except stating that the Parliament is in the process of amending the law.
After hearing learned counsel for the appellant, we are of the view that the judgment of Hon'ble the Supreme Court in the case of Hongo India (P) Ltd (supra) squarely covered the instant case. In para 32 of the said judgment, it has been categorically observed that an appeal to the High Court should be made within a period of 180 days only from the date of communication of the decision or order. This view taken by their Lordships of Hon'ble the Supreme Court was followed by this Court in CEA No.14 of 2009 (Commissioner, Central Excise Commissionerate, Ludhiana v. M/s Indian Acrylics Ltd) decided on 6.8.2009 and CEA No.23 of 2009 (Commissioner, Central Excise Commissionerate, Ludhiana v. M/s Rajit Central Excise Appeal No.81 of 2009(O&M) #3# Paints Ltd) decided on 17.8.2009. After examining the scheme of the Act and the language used in other provisions, their Lordships' of Hon'ble the Supreme Court has held that the legislature has intended the Appellate Authority to entertain the appeal by condoning the delay only upto 30 days after expiry of 60 days, which is the preliminary limitation period for preferring an appeal. However, there is no such provision for condoning the delay in respect of an appeal to be filed before the High Court. Accordingly, it has been held that in the absence of any clause condoning the delay for showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. Therefore, the instant appeal has to be held to be barred by limitation.
For the reasons aforementioned, this appeal fails and the same is dismissed being barred by limitation.
( M.M. KUMAR )
JUDGE
August 18, 2009 ( JASWANT SINGH )
manoj JUDGE