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
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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