Case Note & Summary
The petitioner, M/s Raj Chemicals, filed a writ petition under Article 226 of the Constitution before the Bombay High Court seeking a direction to condone the delay in filing an appeal against an order dated 5 March 2010 of the Assistant Commissioner, Central Excise, Navi Mumbai. The Assistant Commissioner had rejected seven rebate applications filed by the petitioner under Rule 18 of the Central Excise Rules, 2002, and allowed recredit of Central Excise duty amounting to Rs. 15.48 lakhs. The petitioner was granted liberty to file refund applications under Rule 5 of the Cenvat Credit Rules, 2004. The appeal against this order lay to the Commissioner of Central Excise (Appeals) under Section 35 of the Central Excise Act, 1944, which prescribes a limitation period of 60 days from the date of communication of the order, with a further period of 30 days for condonation of delay if sufficient cause is shown. The petitioner did not file the appeal within the prescribed period and sought condonation of delay beyond the 30-day outer limit. The petitioner argued that Section 5 of the Limitation Act, 1963, read with Section 29(2) thereof, allows the court to condone delay even beyond the statutory period, as Section 35 does not expressly exclude the application of Section 5. Alternatively, the petitioner sought that the order of the Assistant Commissioner be made subject to the outcome of a Revision Application filed before the Government of India. The respondents, Union of India and others, opposed the petition. The court held that Section 35 of the Central Excise Act is a complete code for appeals and the proviso to Section 35(1) expressly provides a maximum extension of 30 days, thereby excluding the application of Section 5 of the Limitation Act. The court noted that Section 29(2) of the Limitation Act requires express exclusion for special laws, and the proviso to Section 35(1) constitutes such express exclusion by prescribing a fixed outer limit. The court dismissed the petition, holding that the High Court under Article 226 cannot circumvent the statutory limitation. The court did not address the alternative prayer as it was not pressed.
Headnote
A) Central Excise - Limitation for Appeal - Section 35 Central Excise Act, 1944 - Condonation of Delay - The proviso to Section 35(1) allows a maximum extension of 30 days beyond the initial 60-day period for filing an appeal. The High Court under Article 226 cannot condone delay beyond this outer limit by applying Section 5 of the Limitation Act, 1963, as Section 35 is a complete code and expressly excludes the application of Section 5. Held that the petition seeking condonation of delay beyond the statutory period is not maintainable. (Paras 1-5) B) Limitation Act - Application to Special Laws - Section 29(2) Limitation Act, 1963 - Express Exclusion - Section 29(2) provides that Sections 4 to 24 of the Limitation Act apply to special laws only if not expressly excluded. The proviso to Section 35(1) of the Central Excise Act, 1944, by prescribing a fixed outer limit of 30 days for condonation, expressly excludes the application of Section 5. Held that the limitation period under Section 35 is a complete code and cannot be extended by the Limitation Act. (Paras 3-5)
Issue of Consideration
Whether the High Court under Article 226 of the Constitution can condone delay in filing an appeal under Section 35 of the Central Excise Act, 1944 beyond the period of 30 days provided in the proviso to Section 35(1), by applying Section 5 of the Limitation Act, 1963.
Final Decision
The petition is dismissed. The court held that Section 35 of the Central Excise Act, 1944, is a complete code for appeals and the proviso to Section 35(1) expressly excludes the application of Section 5 of the Limitation Act, 1963, by prescribing a fixed outer limit of 30 days for condonation of delay. The High Court under Article 226 cannot circumvent this statutory limitation.
Law Points
- Section 35 of Central Excise Act
- 1944 provides a complete code for appeals
- Section 5 of Limitation Act
- 1963 is expressly excluded by Section 35
- Section 29(2) of Limitation Act
- 1963 requires express exclusion for special laws
- Article 226 of Constitution cannot be used to circumvent statutory limitation
