ORDER
D.C. Mandal Member (T)
1. Appplicant M/s. West Coast Paper Mills Limited have filed this Reference Application in relation to this Tribunal’s Order No. 896/87-C dated 21.10.1987 in Appeal No. ED(SB) 116/79-C. By the said Order dated 21.10.1987 appellant’s appeal was dismissed by the Special Bench-C of this Tribunal. In paragraph 8 of this reference application the applicants have raised certain points, which, according to them, are important questions of law involved in the impugned order of this Tribunal and have prayed that under Section 35-G(1) of the Central Excises and Salt Act, 1944, a statement of the case be drawn and the questions of law be referred to the High Court of Karnataka.
2. The reference application was filed on 17.3.1988. In the C.O.D. application, the applicants have stated that the Tribunal’s order was received by them on 3.12.1987 and they should have filed the reference application under Section 35G(1) within 60 days of the date on which the Tribunal’s order was served on them. It is also stated that as the Company was continuously facing various types of problems, such as raw material, electric current, disposal of finished goods, as well as financial problem, they labour, forgot to make reference application within the time limit. They have prayed that the delay in filing the reference application may be condoned.
2A. We have heard Shri A.K. Jain, learned Advocate for the applicants and Shri L.C. Chakraborty, learned J.D.R. for the respondent. Shri Jain has stated that following the ratio of Supreme Court judgement vide paragraphs F to H at page 264 of the judgement reported in 1976 S.C.R. Volume II, Page 260 (Mangu Ram v. Municipal Corporation of Delhi) the delay in filing the reference application may be condoned. He has also stated that reference application is sustainable as no rate of duty or valuation of the goods was involved.
3. Shri Chakraborty has argued that reference application is not maintainable in terms of ratio laid down by this Tribunal in the case of Union Carbide India Limited, Calcutta v. Collector of Customs, Calcutta reported in 1984(18) ELT-449(Tribunal). He has argued that the Tribunal has no power to condone delay in filing the reference application.
4. Under Section 35-G(1) a reference application can be filed agianst an order under Section 35-C, not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of the goods for the purpose of assessment. In this connection, we reproduce below paragraph-3 of the impugned Order No. 896/87-C:-
“The main contention of the appellant assessee before the lower authorities and before us has been that the value of wrapped or wrapping paper was included in the value of wrapped paper cleared from the factory and, therefore, it was not necessary for such wrapped or wrapping paper to have paid duty separately.”
Further, in paragraph-4 of the order the Tribunal, after quoting a passage from an earlier decision of this Tribunal in the case of Gwalior Rayon Silk and Manufacturing Co. Ltd. v. Collector of Central Excise, Cochin 1985(20)-ELT-364 which followed Supreme Court decision in the case of Bombay Tyre International 1983-ELT-1986(SC) and also following the Tribunal’s earlier decision in Orient Paper Mills v. C.C.E. Calcutta 1983-ELT-1913(Cegat) observed:
“The decision held that full cost of wrapping paper including any excise duty on it should be included in the value of the wrapping paper for the purposes of excise duty. In view of all this, we reject the first contention advanced by Shri Bhatt”.
We cannot, therefore, accept the contention of Shri Jain that the matter does not relate to the determination of any question having a relation to rate of duty or value of the goods for the purposes of assessment. In the case of Union Carbide India Limited, 1984(18) ELT-449 (Tribunal) this Tribunal held that a reference to the High Court was not admissiable if the question for reference related to the rate of duty or value of goods for purposes of assessment. Therefore In the present case, no reference to the High Court lies under Section 35-G(1) of Central Excises and Salt Act. In the circumstances, we have to dismiss the reference application filed in this case. We order accordingly.
5. As a reference to High Court under Section 35-G(1) of the Act is not permissible in this case, the application for condonation of delay in filing the reference application is irrelevant and has no significance. However, from the point of academic discussion we observe that the Tribunal’s order dated 21.10.1987 was received by the applicants on 3-12-1987. The time-limit prescribed under Section 35G(1) is 60 days from the date of service of the order under Section 35-C. The statutory time-limit expired on 2.2.1988. Under proviso to Section 35G(1) the Tribunal is competent to condone delay not exceeding 30 days where the reference application is maintainable under law. In this case, apart from the fact that reference application does not lie under Section 35-G(1), the delay in filing the application was more than 30 days over the stipulated period of 60 days prescribed under Section 35G(1). The learned Advocate for the applicants has relied on the Supreme Court decision reported in 1976 S.C.R. Volume-II Page 260 in the case of Mangu Ram V. Municipal Corporation of Delhi in support of his contention that Tribunal is competent to condone delay in filing reference application in this case. The question for consideration before the Hon’ble Supreme Court in the said case was condonation of delay in making an application for Special Leave under Sub-section (3) of Section 417 of the Criminal Procedure Code, 1898 over the time-limit of 60 days prescribed in Sub-section 4 of that section. In the said case the Hon’ble Supreme Court held that since under the Limitation Act, 1963 Section 5 is specifically made applicable by Section 29 Sub-section(2), It could be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that application he had sufficient cause for not presenting the within the period of limitation. The Hon’ble Court further held that ‘The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in Sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of six days, the High Court would have the power to entertain it.” In the present case, the applicants have not even shown sufficient cause for not filing the reference application [which, of course, is not permissible in the present case under Section 35G(1)j. The reason given by them in the C.O. D. application is vague and cannot be accepted as sufficient cause for not filing the application within time limit. The ratio of the Supreme Court judgement cannot, therefore, be applied to the present case.
6. In the light of the above discussions, the condonation application filed by the applicants is also rejected.
7. Reference application and C.O.D. application are rejected.
G.P. Agarwal, Member (J)
8. I have had the advantage of going through the judgement proposed by my learned Brothers. While agreeing with them I would like to add that section 5 of the Limitation Act, 1963 is not applicable at all to the Reference Application filed under section 35G of the Central Excises and Salt Act, 1944.
9. Section 35G of the Central Excises and Salt Act, 1944 reads as follows:
“35-G. Statement of case to High Court. – (1) The Collector of Central Excise or the other party may, within sixty days of the date upon which he is served with notice of an order under Section 35-C (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court:
Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days.
(2) * * * * * * * (3) * * * * * * * (4) * * * * * * *" 10. Section 29 of the Limitation Act, 1963 reads as follows :- "29 Savings. - (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Section 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
(3) * * * * * * * (4) * * * * * * *"
12. From a plain reading of the Proviso to Sub-section (1) of Section 35G as extracted above it would be clear that the Tribunal is empowered to condone the delay not exceeding 30 days in filing of the application for reference if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within 60 days as prescribed in Sub-section (1). In view of such limited power conferred by Proviso to Sub-section (1) of Section 35G this Tribunal would not be competent to condone the delay where the Reference Application was filed beyond 30 days. A perusal of the provisions of the Central Excises and Salt Act, 1944 would also show that this Act does not mention Section 5 of the Limitation Act as being applicable to such an application. Hence the question would be as to whether with the aid of Section 29 of the Limitation Act Section 5 of the Limitation Act can be made applicable to such an application in the presence of Proviso to Sub-section (1) of Section 35G. It may be argued that since the Central Excises and Salt Act does not expressly excludes the applicability of Section 5 of the Limitation Act as required under Sub-section (2) of Section 29 of the Limitation Act, Section 5 would be applicable to the Reference Application filed under Section 35G, ibid.
12. However, such an argument cannot be accepted for, ft was held by the Gujarat High Court in the case of Dineshbhai v. Kripalu Co-op. Housing Society, AIR 1980 Guj. 194 that the phrase “not expressly excluded” employed in Sub-section (2) of Section 29 does not mean or imply that exclusion must be in express terms. It would take note of express exclusion as well as express non-inclusion. Thus apart from the express exclusion of Sections 4 to 24 (inclusive) which a special or local law may provide, It is also necessary to find out whether Sub-section (2) of Section 29 is otherwise inherently applicable to a special or local law. If it is inherently not applicable, then, merely by virtue of the fact that a special law or local law does not exclude application of Sections 4 to 24 (inclusive) of Limitation Act, 1963 it cannot be applied. From these observations it is clear that where a special or local law itself prescribes a period of limitation for filing an appeal or application and also provides for a 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 a further specified period on proof of sufficient cause Section 5 of the ‘ Limitation Act would not apply.
13. Recently the Hon’ble Supreme Court in the case of Commissioner of Sales Tax U.P. Lucknow v. Parson Tools & Plants, Kanpur, AIR 1975 SC 1039 while considering the applicability of Sections 5 and 14 (2) of the Limitation Act to the Revision application filed under Rule 68(6) of the U.P. Sales Tax Rules held that the appellate Authority and the Judge (Revisions) under the U.P. Sales Tax Act are not “Courts” but merely Administrative Tribunals. Consequently Section 14 (2) of the Limitation Act does not in terms apply to the porceedings before them. Regarding the applicability of Sections 5 and 14 of the Limitation Act it further, inter-alia, observed as follows:-
“8. The material part of S. 10 runs thus:
‘(3)(1). The Revising Authority…may, for the purpose of satisfying Itself as to the legality or propriety of any order made by any appellate or assessing authority under this Act, in its discretion call for and examine, either on its own motion or on the application of the Commissioner of Sales-tax or the person aggrieved, the record of such order and pass such order as It may think fit
x x x
(3A) …
(3B) The application under Sub-section (3) shall be made within one year from the date of service of the order complained of, but the Revising Authority may on proof of sufficient cause entertain a application within a further period of six months.’
Three features of the scheme of the above provision are noteworthy. The first is that no limitation has been prescribed for the suo motu exercise of its jurisdiction by the Revising Authority. The second is that the period of one year prescribed as limitation for filing an application for revision by the aggrieved party is unusually long. The third is that the Revising Authority has no discretion to extend this period beyond a further period of six months, even on sufficient cause shown. As rightly pointed out in the minority judgment of the High Court, pendency of proceedings of the nature contemplated by Section 14 (2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but Section 10 (3-B) of the Sales Tax Act/gives no jurisdiction to the Revising Authority to extend the limitation even in such a case, for a further period of more than six months.
9. The three stark features of the scheme and language of the above provision, unmistakably show that the legislature has deliberately excluded the application of the principles underlying Section 5 and 14 of the Limitation Act, except to the extent and in the truncated form embodied in Sub-section (3-B) of Section 10 of the Sales Tax Act. Delay in disposal of revenue matters adversely affects the steady inflow of revenues and the financial stability of the State. Section 10 is therefore designed to ensure speedy and final determination of fiscal matters within a reasonably certain time-schedule.
10. It cannot be said that by excluding the unrestricted application of the principles of Sections 5 and 14 of the Limitation Act, the Legislature has made the provisions of Section 10, unduly oppressive. In most cases, the discretion to extend limitation, on sufficient cause being shown for a further period of six months only given by Sub-section (3-B) would be enough to afford relief. Cases are no doubt conceivable where an aggrieved party despite sufficient cause, is unable to make an application for revision within this maximum period of 18 months. Such harsh cases would be rare. Even in such exceptional cases of extreme hardship, the Revising Authority may, on its own motion, entertain revision and grant relief.
11. Be that as it may, from the scheme and language of S. 10, the intention of the Legislature to exclude the unrestricted application of the principles of Sections 5 and 10 of the Limitation Act is manifestly clear. These provisions of the Limitation Act which the legislature did not, after due application of mind, incorporate In the Sales Tax Act, cannot be imported into it by analogy. An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded “according to the intent of them that made it”. “The will of the legislature is the supreme law of the land, and demands perfect obedience”. “Judicial power is never exercised”, said Marshall C.J. of the United States, “for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature; or in other words, to the will of the law”.
12. If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity. “To do So” – (at p.65 in Prem Nath L Ganesh V. Prem Nath L. Ram Nath AIR 1963 Punj 62. Per Tek Chand J.) “would be entrenching upon the preserves of Legislature”, the primary function of a court of law being jusdicere and not jus dare.
13. In the light of what has been said above, we are of the opinion that the High Court was in error in importing whole hog the principle of Section 14 (2) of the Limitation Act into Section 10 (3-B) of the Sales-tax Act.”
14. The ratio of the said judgment delivered by the Hon’ble Supreme Court in the case of Commissioner of Sales Tax, U.P. Vs. Parson Tools & Plants, Kanpur, supra, apply on all fours to the instant case.
15. The Madras High Court also took the similar view in the case of T.V. Annapalippu Nidhi, Tirupanandal V. State, AIR 1981 Madras 211 wherein while considering the competency of the Land Tribunal to condone the delay beyond 30 days as provided under Sub-section (2) of Section 78 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (as amended) in appeal filed under Section 78 of the said Act against the Orders of the Authorised Officer held that the Land Tribunal would not be competent to condone the delay where the Government’s appeal was filed beyond 60 days of the date of the Order as Sub-section (2) of Section 78 empowers the Tribunal to condone the delay no* exceeding 30 days in filing of the appeal.
16. Thus I hold that Section 5 of the Limitation Act is not attracted to the Reference Application filed under Section 35G and the Tribunal is not empowered to condone the delay beyond 30 days in terms of Proviso to Sub-section (1) of Section 35G and the case of Mangu Ram Vs. Delhi Municipality, supra, is distinguishable as the Hon’ble Supreme Court decided the applicability of Section 5 of the Limitation Act on the basis of the provisions available in the repealed Code of Criminal Procedure, 1898.