ORDER
Shri Jeet Ram Kait
1. The appellant is a Public Sector Unit. They have got permission from the Committee of Secretaries to pursue the appeal before the Tribunal.
2. The brief facts of the case are that the appellant received the order in original on 13.3.90 whereas the appeal was filed before the lower appellate authority on 18.7.96 e.e. after a lapse of over six years. It was pleaded before the lower appellate authority that the order in original and the related records were misplaced by them. However, in terms of Section 128(1) of the Customs Act, 1962, the appeal ought to have been filed within three months from the date of communication of the order in original and the period of three months is extendable by another three months provided the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months. In the instant case, however, the appeal has been filed after expiry not only of the maximum period of six months but after a lapse of over six years. Therefore, the Commissioner (Appeals) has shown his inability to condone the delay as he has no discretion under the Statutory provisions to condone the time limit which has been statutorily prescribed. He has therefore, rejected the appeal as time barred.
3. Shri K. Veeraraghavan, ACGSC, appears for the appellant and has pleaded for condonation of delay in filing the appeal on the ground that the Committee of Secretaries has accorded permission to pursue the appeal. He vehemently argued that the permission granted by the High Power Committee of Secretaries should be considered as condoning the delay also in filing the appeal.
4. Shri A. jayachandran, learned DR vehemently opposes the prayer for condonation of delay on the ground that the Committee of Secretaries has given permission only to pursue the appeal and not condoned the delay in filing the appeal. The Committee of Secretaries has no power to condone the delay in pursuing the appeal. Therefore, the Commissioner (Appeals) has rightly rejected the appeal as time barred.
5. We have considered the submissions of both sides. We are of the considered opinion that the issue is no longer res integra as the issue has been settled by the Hon’ble Supreme Court in several judgements, as noted by CEGAT in their judgement in the case of TN Tobacco Co. vs. Commissioner of Central Excise and Customs, Coimbatore reported in 1998 (28) RLT 73 (CEGAT) The findings recorded in paras 6 to 10 are reproduced below:
6. Both the sides were asked to give citations in this case, but they expressed their inability. The Bench had to look into the various judgements and it was noted that similar issue had been agitated number of times before the Tribunal and there area larger number of judgements covering the issue. The common thread of the ratio is that the Tribunal being a creature of the statue does not have the jurisdiction to condone the delay where the legislature clearly declares the intent in the scheme and language of a statute, it is the duty of the Court to give effect to the same without scanning its wisdom or policy and without engrafting adding or implying anything which is not convenient to or consistent with such expressed intent of the law-giver, more so, if the statute is a taxation statute. This observation is found in the judgement rendered by the Calcutta High Court in the case of Metro Exporters Vs. CEGAT reported in 1991 (51) ELT 316 (Cal). In paras 5 & 6 of the judgement the High Court had taken note of the Supreme Court judgement rendered in AIR 1962 SC at page 361 and that of AIR 1975 SC at page 1039. It was discussed that under the UP Sales Tax Act and the UP Sales Tax Rules, application was filed beyond the time prescribed by Section 10, it was found that if the legislature in a special statute prescribed a certain period of limitation for filing a particular application, thereunder and provides in clear terms that such period of sufficient cause being shown may be extended in the maximum only upto the specified time limit and no further, the Tribunal concerned has no jurisdiction to treat within limitation the application filed before it beyond the such maximum time limit specified in the statute by excluding the time spent in prosecuting in good faith and with due diligence in prior proceedings on the analogy of Section 13(2) of the limitation Act. Further observations are found in para 6 of the judgement wherein it has been observed that the Tribunal being a creature of the statute has to exercise its power under the provisions of the said statute. The concept of larger freedom as provided under Section 5 of the limitation Act is not available to the Tribunal but the special Statute does not prohibit the Tribunal to entertain application for condonation of delay and the consideration of the sufficient cause as to delay in filing revisional application beyond the extended period while the revisional application has in fact been filed within the extended period of limitation. It is frequently found that an appeal or revision application or reference being filed long ago come up for hearing and at the stage of hearing if it is found that there is any delay leave is granted to pray for condonation such delay. While considering application for condonation of delay, the Court or Authority has not to consider delay in filing the application for condonation of delay and it is required to consider delay in filing the memorandum of appeal or revision or the reference.
7. The judgement is that the Tribunal is bound by the limitation stipulated under Section 35G of the CEA 1944 and that the provisions of the limitation Act is not available to the Tribunal.
8. The Tribunal by a larger bench decision in the case of CCE, Meerut Vs. Lalchand Anand & Ors. (1986 (23) ELT 530) comprising of five numbers have laid down the law and held that reference application has to be filed within the period stipulated under Section 35G(1) of the CEA 1944 i.e. within 60 days of the receipt of the order of the Tribunal. The discretion vested in the Tribunal to condone delay is confined to a period of 30 days beyond the initial period of 60 days and noting this the Collector’s application for condonation of delay beyond this period was rejected as barred by time.
9. This matter was again raised in the case of Video Electronics Private Ltd. Vs. CCE, reported in 1986 (26) ELT 653. The Tribunal in this order taken into consideration the various other judgements including those of the High Courts and noting the particular judgement in the case of Commissioner of Sales Tax UP Vs. M/s Parson Tools and Plants reported in AIR 1975 SC 1039 quoted the observation that the authorities functioning under the Sales Tax Act are merely Administrative Tribunals and not Courts and Section 14 of the Limitation Act, therefore, does not in terms apply to the proceedings before such Tribunals. The Tribunal again noted the observation of the Supreme Court in the case of Nityanand M. Joshi Vs. LIC of India reported in AIR 1990 SC 209, wherein it is observed that it seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to Courts and Labour Court is not a Court within the Indian Limitation Act, 1963. Again the Tribunal quoted the judgement of the Supreme Court rendered in the case of Sakuru Vs. Tanaji reported in AIR 1985 SC 1279 wherein the Hon’ble Supreme Court held that the provisions of Limitation Act apply to proceedings before Courts only and not to proceedings before quasi-judicial authorities. The Tribunal also quoted the judgement of the case of Canara Workshop Ltd., Mangalore Vs. CC Madras reported in 1983 ELT 1099 wherein it is held that the provisions of Limitation Act only apply to appeals before Courts and not proceedings before Special adjudicating authorities. Noting all these judgements the Tribunal concluded that the limitation laid down under Section 35G of the CEA 1944 cannot be extended beyond the stipulated period laid down therein.
10. In the case of West Coast Paper Mills Ltd. Vs. CCE, reported in 1988 (37) ELT 386 (Tribunal) the Tribunal has gone in great detail into the aspect of the matter and has relied upon the judgement of the Gujarat High Court in the case of Dineshbhai Vs. Kripalu Co-op Housing Society, AIR 1980, Guj. 194 to hold that where a special or local law itself provides for a period of limitation for filing of appeal or application, and also provides for limited application and exercise of powers analogous to Section 5 of the limitation Act in that the authority under the Act may entertain an application or appeal within the further period on proof of sufficient cause Section 5 of the limitation Act does not apply. The Tribunal also noted the judgement of the Supreme Court rendered in the case of Commissioner of UP Vs. Parson Tools & Plants, Kanpur, reported in AIR 1975 SC 1039 to conclude that the said judgement would apply in all fours and came to the conclusion that the limitation Act is not attracted to the reference application filed under Section 35G of the CEA 1944 and the Tribunal is not empowered to condone the delay 30 days in terms of proviso to Section 35G of the CEA 1944. The Tribunal again considered this aspect in the case of Brij Kishore Maheswari and others Vs. CC, Madras reported in 1987 (31) ELT 384 and noting the judgement of the Supreme Court reported in AIR 1976 SC 2161 (1985 (22) ELT 327 (SC)) held that reference application filed beyond the condonable period of limitation is not sustainable. The Tribunal again considered this aspect in the case of CCE Vs. Tata Engg. and Locomotive Co. Ltd. and noting the ratio of the judgement of the Supreme Court in the case of Commissioner of Sales Tax Vs. Parson Tools and Plants reported in 25 ST cases 413 = 1970 1 Supreme Court Journal 24, and that of the decision of the Larger Bench judgement rendered in 1986 (23) ELT 530 rejected the reference application as time barred on the terms that if the legislature in a special statute prescribes certain period of limitation for filing a particular application therein and provides in clear terms that such period of sufficient cause being shown may be extended, in the maximum only up to a specified time limit and no further, than the Tribunal concerned has no jurisdiction to treat within limitation application filed before it beyond such maximum time limit specified in the statute by excluding the time limit spent in prosecuting in good faith and diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act. In view of the well settled law in similar cases, in all the judgements cited supra, there is no merit in the application and respectfully following those judgements the application for condonation of delay in filing the reference is rejected. Consequently, the reference application is also rejected.
Order pronounced on 5.6.98.
6. On a reading of the above paragraphs, we notice that the issue has been gone into in great detail by the Hon’ble Apex Court and the larger bench of the Tribunal in the various judgements noted therein. The ratio of those judgements applies to the facts of the present case also and respectfully following the ratio therein, we do not find any merit in the appeal and the same is rejected. Ordered accordingly.
(Dictated and pronounced in open Court)