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Vignesh Enterprises vs The Customs on 26 September, 2019

W.P.No.28200 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 26.09.2019

C O R A M:

THE HON’BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON’BLE MR.JUSTICE SUBRAMONIUM PRASAD

W.P.No.28200 of 2019
W.M.P.Nos.27869 of 2019

Vignesh Enterprises,
Represented by it’s Managing Partner,
408 Trichy Main Road,
Gugai, Salem,
Tamil Nadu 636 001. … Petitioner

Vs.

1.The Customs, Excise, Service Tax
Appellate Tribunal,
No.26, Shastri Bhavan Annex Building,
Haddows Road, Chennai 600 006.

2.The Commissioner of GST and
Central Excise (Appeals), Coimbatore,
Circuit Office @ Salem Commissionerate,
No.1 Foulks Compound, Anai Road,
Salem 636 001.

3.The Additional Commissioner of Central Excise,
No.1 Foulks Compound, Anai Road,
Salem 636 001. … Respondents

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Prayer: Writ Petition is filed under SectionArticle 226 of the Constitution of
India, praying for the issuance of a Writ of Certiorarified Mandamus, to
call for the records relating Final Order No.40671/2019, dated
24.04.2019, arising out of Service Tax Appeal No.42059 of 2018, passed
by the first respondent, quash the same and remit the matter back to the
file of the 2nd respondent for passing appropriate orders on appeal.

For Petitioner : Mr.R.Chandrasekaran

For 1st Respondent : Tribunal

For Respondents : Mrs.Aparna Nandakumar,
CGSC

ORDER

(Order of the Court was made by S.MANIKUMAR, J)

Instant Civil Miscellaneous Appeal is filed against the Final Order

No.40671/2019, dated 24.04.2019, arising out of Service Tax Appeal

No.42059 of 2018, passed by the Customs, Excise, Service Tax Appellate

Tribunal, Chennai, first respondent and remit the matter back to the file

of the 2nd respondent for passing appropriate orders in the appeal.

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2. The petitioner is a partnership firm, which owns Kailash

Theatre in the city of Salem. By an agreement, dated 20.12.2017,

followed by a supplementary agreement, dated 01.06.2009, the

petitioner-firm have let their theatre, on lease to one M/s.Adlabs (now

known as M/s.Reliance Media Works Ltd.,), to conduct business, operate

and manage the theatre. However, on inspection, the Directorate

General of Central Excise Intelligence had issued a show cause notice,

dated 08.09.2015, to the petitioner, demanding service tax. The

Additional Commissioner of Central Excise, Salem, vide order, dated

27.09.2016, the third respondent, has confirmed the order of recovery

and also imposed penalties. Against the Original Order, an appeal was

filed by the Managing Director of the petitioner-firm with a delay of 272

days, due to reasons, beyond his control, like death of his mother,

hospitalization and recovery of his illness. The said appeal was dismissed

by the Commissioner of GST and Central Excise (Appeals), Coimbatore,

Circuit Office @ Salem Commissionerate, Salem. Against which, the

petitioner-firm has filed an appeal before the CESTAT, Chennai. Vide

Final Order No.440671 of 2019, dated 16.04.2019, the Tribunal has

dismissed as follows:

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“3. I have considered the rival contentions, gone
through the documents placed on record and also the
judgments relied on. This appeal filed under Section 129 A of
the Customs Act and Section 129 A (5) empowers this forum
to condone the delay of any number of days. Similarly,
Section 128 lays down procedures and appellate jurisdiction
of the First Appellate Authority. The scope and ambit of
these two sections are quite clear and distinct. Also, Section
129 do not anywhere authorize this forum to enter into the
domain of the first appellate authority since the scope of
appellate jurisdiction is limited and that to usurp or assume
the jurisdiction of the first appellate authority by this forum
is clearly unauthorized.

4. In the grounds of appeal the assessee has contended
interalia that sufficient cause was shown; that the Courts
have held that a liberal approach should be there in
condoning the delay; in the absence of any deliberate
intention the explanation for delay needs to be accepted
etc. No doubt, a liberal approach should be there provided
the delay is before this forum or that the sufficiency as to
the reasonableness of the cause but the statute authorizes
the authority alone before whom the issue is agitated, to
decide both the above aspects of sufficiency or liberal
approach. The Ld. First Appellate Authority has exercised its
discretion in the manner and in accordance with law on the

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limitation and this forum is not having any jurisdiction to
judge correctness or otherwise of the same.

For the above reasons, I do not find any reasons to
interfere with the findings of the first appellate authority
with regard to limitation.”

3. Though several grounds have been filed, challenging the

order of the CESTAT, Chennai, this Court is not inclined to interfere with

the order of the Tribunal, on the ground that in a similar case in SectionFalcon

Types Ltd., v. Customs, Excise and Service Tax Appellate Tribunal

reported in 2016 (5) MLJ 413, we have considered the power of the

appellate authority to condone the delay beyond the extendable period

and held as follows:

“8. On the aspect, as to whether, the appellate
authority is empowered to condone the delay of the
extendable period, let us consider few decisions of the
Hon’ble Apex Court, rendered under various enactments,
wherein specific time limit has been provided, for filing an
appeal.

(i) In Indian Coffee Worker’s Co-op. Society Ltd. v.

Commissioner of Commercial Taxes reported in 2002 (I) CTC
406, the question considered by a Hon’ble Division Bench of

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this Court was, as to whether, the High Court, while
exercising SectionArticle 226 of the Constitution of India, can direct
the appellate authority to consider the appeal, on merits,
when such appeal was filed, after the expiry of 30 days,
from the last date, on which, appeal should have been filed.
The issue arose out of a decision of the Special Tribunal,
which dismissed the petition, declining to condone the
delay. While considering the scope of Section 31 of the
Tamil Nadu General Sales Tax Act, 1959, a Hon’ble Division
Bench of this Court, observed that Tamil Nadu General Sales
Tax Act, 1959, clearly lays down that an appeal has to be
filed within thirty days from the date of receipt of the order
and that an appeal may be admitted beyond that period, if
the appellate authority is satisfied that the appellant had
sufficient cause for not presenting the appeal within the
said period. After considering the decisions in SectionMohd. Ashfaq
v. State Transport Appellate Tribunal, U.P., [AIR 1976 SC
2161], SectionK. Ganesh v. State of Tamil Nadu [1988 STC (VOL.68)
84], SectionKanaka Durga Agro Oil Products Ltd. v. Commercial Tax
Officer, Benz Circle, Vijayawada [2000 STC (Vol.119) 387]
and SectionUnion of India v. Popular Construction Co., [2001 (4)
CTC 213], a Hon’ble Division Bench of this Court has held as
follows:

“(a) An appeal under Section 30(1) of the Tamil Nadu
General Sales Tax Act, 1959 has to be filed within 30 days

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before the appellate Assistant Commissioner. The appellate
Assistant Commissioner is empowered to condone the delay
for further period of 30 days if sufficient cause for not
presenting the appeal in time is shown and satisfied by the
appellate authority.

(b) Under no circumstances, the appellate authority
has power to condone the delay beyond 30 days.

(c) While the High Court exercising the jurisdiction
under SectionArticle 226 of Constitution of India, approves the
correctness of the order of the appellate authority, it has no
power to direct the appellate authority to consider the
appeal on merits as otherwise it would be nothing but Court
extending the period of limitation.

(d) Even if the High Court accepts the explanation
given by the assessee for not filing the appeal within the
period prescribed under the Act, it cannot direct the
appellate authority to consider the matter on merits as the
High Court exercising jurisdiction under SectionArticle 226 of
Constitution of India, cannot re-write the provisions of the
Act.”
It is worthwhile to extract the reported judgments
considered in Indian Coffee Worker’s Co-op. Society Ltd.’s
case (cited supra), which are reproduced hereunder:

“SectionIn Mohd. Ashfaq v. State Transport Appellate
Tribunal, U.P., [AIR 1976 SC 2161], the Supreme Court was

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considering Section 58 of the Motor Vehicles Act. The
Supreme Court has ruled as under:-

“Section 58 of the said Act provided that a permit may
be renewed on an application made for such purposes,
provided that the application for renewal of a permit shall
be made (a) in the case of stage carriage permit or public
carrier’s permit, not less than 120 days before the date of
expiry; and (b) in any other case not less than 60 days
before the date of its expiry. Sub-section (3) of that Section
further provided that: “Notwithstanding anything contained
in the first proviso to subsection(2), the Regional Transport
Authority may entertain an application for the renewal of a
permit after the last date specified in the said proviso for
the making of such an application, if the application is made
not more than 15 days after the said last date and is
accompanied by the prescribed fee.”
Thus, sub-section(3) vested in the Regional Transport
Authority a power to entertain an application for renewal of
a permit even if it is beyond time, but in that case the time
should not be more than fifteen days. The question for
consideration was, whether sub-section (3) could be said to
expressly exclude the provisions of Section-5 of the
Limitation Act which gives unlimited power to the Court or a
Tribunal to excuse the delay irrespective of the number of
days of delay? Considering this question, the Supreme Court

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held:

“It is therefore, clear that sub-section (3) of Section
58 confers a discretion on the Regional Transport Authority
to entertain an application for renewal when it is made
beyond the time-limit specified in the proviso to sub-section
(2), but not more than 15 days late and the discretion is to
be exercised in favour of entertaining the application for
renewal when it is shown that there was sufficient cause for
not making it in time. Now, the question which arises is:
does Section 5 of the Limitation Act, 1963 apply so as to
empower the Regional Transport Authority, for sufficient
cause to entertain an application for renewal even where it
is delayed by more than 15 days? Section 29, sub-section (2),
of the SectionLimitation Act, 1963 makes Section 5 applicable in
the case of an application for renewal unless its applicability
can be said to be expressly excluded by any provision of the
Act. The only provision of the Act sought to be pressed into
service for this purpose was sub-section (3). Does sub-
section (3) expressly exclude further extension of time
under Section 5? If it does, then Section 5 cannot be availed
of by the appellant for condonation of the delay. Sub-
section (3) in so many terms says that the Regional
Transport Authority may condone the delay in making of an
application for renewal and entertain it on merits provided
the delay is of not more than 15 days. This clearly means

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that if the application for renewal is beyond time by more
than 15 days, the Regional Transport Authority shall not be
entitled to entertain it, or in other words, it shall have no
power to condone the delay. There is thus an express
provision in subsection (3) that delay in making an
application for renewal shall be condonable only if it is of
not more than 15 days and that expressly excludes the
applicability of Section 5 in cases where an application for
renewal is delayed by more than 15 days.”
It has to be noted that even though in the provisions of the
Act (Section 58 of the Motor Vehicles Act of Uttar Pradesh),
the wordings “condonable only if it is of not more than 15
days” are not there, the Supreme Court so held on the basis
of the wordings employed in the provisions of the Act, which
read thus:-

“may entertain an application for the renewal of a
permit after the last date specified in the said proviso for
the making of such an application, if the application is made
not more than 15 days after the said last date.”

12. The next decision is the one reported in SectionK. Ganesh
v. State of Tamil Nadu [1988 STC (VOL.68) 84]. That was a
case where a petition was filed to condone the delay of 211
days in filing the Tax Case Revisions against the order of the
Sales Tax Appellate Tribunal, Coimbatore. The Revisions
were filed under Section 38 of the Tamil Nadu General Sales

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SectionTax Act. According to Sub-section-1 of Section-38, a petition
can be preferred to the High Court within 90 days from the
date of which copy of the order is served. By virtue of the
8th SectionAmendment Act 1986 which came into effect on
15/12/1986, the High Court may within a further period of
forty-five days, admit a petition preferred after the
expiration of the said period of ninety days, if it is satisfied
that the petitioner had sufficient cause for not preferring
the petition within the said period. In the said Ruling, a
Division Bench of this Court held that the period prescribed
in the statue (local law) is clear and that further Section 29
of the Limitation Act specifically provided that Sections 4 to
Section24 would apply only insofar as and to the extent to which
they are not expressly excluded by such special or local law.
The Court, in that case, ruled that there is an express
exclusion of Section 5 of the Limitation Act.

13. The next ruling that can be usefully referred to is
the one reported in SectionKanaka Durga Agro Oil Products Ltd. v.
Commercial Tax Officer, Benz Circle, Vijayawada [2000 STC
(Vol.119) 387]. That was a case arising under Andhra
Pradesh General Sales Tax Act. In that case, the petitioner
agreed for the proposed assessment and gave a letter of
consent to that effect. However, long thereafter, the
petitioner filed an appeal against the said assessment order
with a delay of 533 days. The assessee in that case raised a

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contention that a turnover of Rs. 76,72,260/- representing
the sale of oil extracted from oil cakes was subjected to a
higher rate of tax unlike oil extracted from oil seeds, on the
basis of the decision in RAJASHREE OILS EXTRACTIONS’
case (1998) 111 STC 668 (AP) [FB] in which entry 24 [a] of
the First schedule to the Andhra Pradesh General Sales Tax
Act, 19 57 was declared unconstitutional. The appellate
authority dismissed the appeal on the ground of delay. The
Court ruled as under:-

“If the special statute prescribed a particular period
of limitation for preferring the appeal, the appeal has to be
necessarily filed within that date. If there is a provision for
condonation of delay and sufficient cause is shown, the
appellate authority can condone the delay if it is satisfied
with the reasons for the delay. The proviso to Section 19[1]
as it originally stood empowered the appellate authority to
admit an appeal after a period of 30 days, if it is satisfied
that the dealer had sufficient cause for not preferring the
appeal within the prescribed period of 30 days subject to
the payment of the admitted tax due. Under the amended
provision, the delay can only be condoned up to a further
period of 30 days.”

14. In a recent Judgment, the Supreme Court of India,
in SectionUnion of India v. Popular Construction Co., [2001 (4) CTC
213], considered Section 34 of Arbitration and Conciliation

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Act, 1996 and ruled that when the statue positively
prescribes 90 days as time limit for the purpose of filing an
application under SectionArbitration Act, that provision is to
condone the delay for a further period of 30 days only and
Section 5 of the Limitation Act does not apply in view of
express exclusion and scheme of the Act and delay beyond a
period of 30 days after expiry of the original period of
limitation cannot be condoned. It will be useful to quote in
verbatim, the exact wordings employed by the Supreme
Court, which reads thus:-

“As far the language of Section 34 of 1996 Act is
concerned, the crucial words are “but not thereafter” used
in the proviso to subsection(3). In our opinion, this phrase
would amount to an express exclusion within the meaning of
Section 29(2) of the Limitation Act, and would therefore bar
the application of Section 5 of that Act. Parliament did not
need to go further. To hold that the Court could entertain
an application to set aside the Award beyond the extended
period under the proviso, would render the phrase ‘but not
thereafter’ wholly otiose. No principle of interpretation
would justify such a result.”

(ii) SectionIn Singh Enterprises v. Commissioner of Central
Excise, Jamshedpur reported in 2008 (221) E.L.T. 163 (SC),
the Hon’ble Apex Court considered a case, wherein, the
Commissioner dismissed the appeal on the grounds that it

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was time barred and beyond the period of 30 days from the
expiry of period of 60 days, prescribed for filing the
statutory appeal. The High Court dismissed the writ petition.
Before the Supreme Court, arguments were advanced that
even though the Commissioner has no power to condone the
delay, in exercise of the powers, under SectionArticle 226 of the
Constitution of India, yet the High Court, can condone the
delay, and such power is untrammeled by any statutory
provision. Rejecting the above contention, at Paragraph 8,
the Hon’ble Apex Court held as follows:

“8. The Commissioner of Central Excise (Appeals) as
also the Tribunal being creatures of Statute are vested with
jurisdiction to condone the delay beyond the permissible
period provided under the Statute. The period upto which
the prayer for condonation can be accepted is statutorily
provided. It was submitted that the logic of Section 5 of the
Indian Limitation Act, 1963 (in short the SectionLimitation Act) can
be availed for condonation of delay. The first proviso to
Section 35 makes the position clear that the appeal has to
be preferred within three months from the date of
communication to him of the decision or order. However, if
the Commissioner is satisfied that the appellant was
prevented by sufficient cause from presenting the appeal
within the aforesaid period of 60 days, he can allow it to be
presented within a further period of 30 days. In other words,

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this clearly shows that the appeal has to be filed within 60
days but in terms of the proviso further 30 days time can be
granted by the appellate authority to entertain the appeal.
The proviso to sub-section (1) of Section 35 makes the
position crystal clear that the appellate authority has no
power to allow the appeal to be presented beyond the
period of 30 days. The language used makes the position
clear that the legislature intended the appellate authority to
entertain the appeal by condoning delay only upto 30 days
after the expiry of 60 days which is the normal period for
preferring appeal. Therefore, there is complete exclusion of
Section 5 of the Limitation Act. The Commissioner and the
High Court were therefore justified in holding that there was
no power to condone the delay after the expiry of 30 days
period.”

(iii) SectionIn Commissioner of Customs Central Excise v.
Hongo India (P) Ltd., reported in 2009 (236) ELT 417 (SC),
the Hon’ble Apex Court considered a question, as to
whether, High Court has power to condone the delay, in
presentation of a reference application, under unamended
Section 35H(1) of the Central Excise Act, 1944, beyond the
prescribed period, by applying Section 5 of the Limitation
Act, 1963. After considering the decisions in SectionSingh
Enterprises v. CCE, Jamshedpur reported in 2008 (221) ELT
163 (SC), at Paragraphs 18 to 20, the Hon’ble Apex Court

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held as follows:

“18) In the earlier part of our order, we have adverted
to Chapter VIA of the Act which provides appeals and
revisions to various authorities. Though the Parliament has
specifically provided an additional period of 30 days in the
case of appeal to the Commissioner, it is silent about the
number of days if there is sufficient cause in the case of an
appeal to Appellate Tribunal. Also an additional period of 90
days in the case of revision by Central Government has been
provided. However, in the case of an appeal to the High
Court under Section 35G and reference application to the
High Court under Section 35H, the Parliament has provided
only 180 days and no further period for filing an appeal and
making reference to the High Court is mentioned in the Act.
In this regard, it is useful to refer to a recent decision of this
Court in Punjab Fibres Ltd., Noida (supra). Commissioner of
Customs, Central Excise, Noida is the appellant in this case.
While considering the very same question, namely, whether
the High Court has power to condone the delay in
presentation of the reference under Section 35H(1) of the
Act, the two-Judge Bench taking note of the said provision
and the other related provisions following SectionSingh Enterprises
v. Commissioner of Central Excise, Jamshedpur, (2008) 3
SCC 70 concluded that “the High Court was justified in
holding that there was no power for condonation of delay in

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filing reference application.”

19) As pointed out earlier, the language used in
Section 35, Section35B, Section35EE, Section35G and Section35H 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. Even
otherwise, for filing an appeal to the Commissioner, and to
the Appellate Tribunal as well as revision to the Central
Government, the legislature has provided 60 days and 90
days respectively, on the other hand, for filing an appeal
and reference to the High Court larger period of 180 days
has been provided with to enable the Commissioner and the
other party to avail the same. We are of the view that the
legislature provided sufficient time, namely, 180 days for
filing reference to the High Court which is more than the

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period prescribed for an appeal and revision.

20) Though, an argument was raised based on Section
29 of the Limitation Act, even assuming that Section 29(2)
would be attracted what we have to determine is whether
the provisions of this section are expressly excluded in the
case of reference to High Court. It was contended before us
that the words “expressly excluded” would mean that there
must be an express reference made in the special or local
law to the specific provisions of the SectionLimitation Act of which
the operation is to be excluded. In this regard, we have to
see the scheme of the special law here in this case is SectionCentral
Excise Act. The nature of the remedy provided therein are
such that the legislature intended it to be a complete Code
by itself which alone should govern the several matters
provided by it. If, on an examination of the relevant
provisions, it is clear that the provisions of the SectionLimitation
Act are necessarily excluded, then the benefits conferred
therein cannot be called in aid to supplement the provisions
of the Act. In our considered view, that even in a case
where the special law does not exclude the provisions of
Section 4 to Section24 of the Limitation Act by an express
reference, it would nonetheless be open to the court to
examine whether and to what extent, the nature of those
provisions or the nature of the subject-matter and scheme
of the special law exclude their operation. In other words,

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the applicability of the provisions of the SectionLimitation Act,
therefore, to be judged not from the terms of the SectionLimitation
Act, but by the provisions of the SectionCentral Excise Act relating
to filing of reference application to the High Court. The
scheme of the SectionCentral Excise Act, 1944 support the
conclusion that the time limit prescribed under Section
35H(1) to make a reference to High Court is absolute and
unextendable by court under Section 5 of the Limitation Act.
It is well settled law that it is the duty of the court to
respect the legislative intent and by giving liberal
interpretation, limitation cannot be extended by invoking
the provisions of Section 5 of the Act.” (emphasis supplied)

(iv) SectionIn Chhattisgarh State Electricity Board v. Central
Electricity Regulatory Commission reported in (2010) 5 SCC
23, the question which arose before the Hon’ble Supreme
Court, was whether, Section 5 of the Limitation Act, 1963,
can be invoked by the Court, for allowing an aggrieved
person to file an appeal, under Section 125 of the Electricity
Act, 2003, after more than 120 days, from the date of
communication of the decision of the order of the Appellate
Tribunal for Electricity. In the reported case, the appellant
challenged the order of the Central Regulatory Authority,
before the Tribunal. Vide order, dated 17.05.2007, the
Tribunal allowed the appeal. Being aggrieved, the appellant
therein preferred an appeal before the Hon’ble Supreme

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Court. Along with the appeal, the appellant filed an
application for condonation of delay of 160 days.
Contentions were raised before the Hon’ble Apex Court that
though the appeal was filed more than 140 days, counted
from the date of Tribunal’s order, in terms of the provisions
to Section 125 of the Electricity Act, 2003, the Apex Court
can extend the time to file an appeal to a maximum of 60
days only and the power under Section 5 r/w. Section 29(2)
of the Limitation Act can be exercised for condonation of
delay beyond the period of 120 days. Decision in SectionMukri
Gopalan v. Cheppilat Puthuapurayil Aboobacker [(1995) 5
SCC 5] was pressed into service. Besides, a contention has
also been made that, by virtue of the impugned order
therein, huge liability has been fastened against the
appellant and if the appeal is not entertained, it will suffer
irreparable injury. Learned counsel appearing for the 3rd
respondent therein, has submitted that in view of the plain
language of the proviso to Section 125 of the Electricity Act,
the Hon’ble Supreme Court has no power to extend the
period for filing an appeal beyond 120 days and if the
provisions of the SectionLimitation Act is invoked, it would negative
the legislative intent, which has prescribed a special
limitation, for filing an appeal against any decision or order
of the Tribunal. Reliance has also been placed on the
decision of the Hon’ble Apex Court in Popular Construction

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Company’s case (cited supra), Singh Enterprises’s case (cited
supra) and Hongo India Private Ltd.’s case (cited supra).
Section 125 of the Electricity Act, 2003, reads as follows:

“125. Appeal to Supreme Court:- Any person aggrieved
by any decision or order of the Appellate Tribunal, may, file
an appeal to the Supreme Court within sixty days from the
date of communication of the decision or order of the
Appellate Tribunal, to him, on any one or more of the
grounds specified in section 100 of the Code of Civil
Procedure, 1908 (5 OF 1908):

Provided that the Supreme Court may, if it is satisfied that
the appellant was prevented by sufficient cause from filing
the appeal within the said period, allow it to be filed within
a further period not exceeding sixty days.

23. Sections 5 and Section29 of the Limitation Act, 1963, are
extracted hereunder:

“5. Extension of prescribed period in certain cases.-
Any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil
Procedure, 1908 (5 of 1908), may be admitted after the
prescribed period, if the appellant or the applicant satisfies
the court that he had sufficient cause for not preferring the
appeal or making the application within such period.

Explanation.– The fact that the appellant or the

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applicant was misled by any order, practice or judgment of
the High Court in ascertaining or computing the prescribed
period may be sufficient cause within the meaning of this
section.

29. Savings.- (1) Nothing in this Act shall affect
Section 25 of the Indian Contract Act, 1872 (9 of 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 Sections 4 to Section24 (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) Save as otherwise provided in any law for the time
being in force with respect to marriage and divorce, nothing
in this Act shall apply to any suit or other proceeding under
any such law.

(4) Sections 25 and Section26 and the definition of
“easement” in Section 2 shall not apply to cases arising in
the territories to which the SectionIndian Easements Act, 1882 (5 of
1882), may for the time being extend.”
After considering several decisions, the Hon’ble Supreme

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Court, at Paragraphs 20, 25 to 27 and 32, held as follows:

“20. Section 125 provides for an appeal to this Court
against any order or decision of the Tribunal which can be
filed within 60 days from the date of communication of the
decision or order of the Tribunal. The limitation placed on
the jurisdiction of this Court is that the appeal can be
entertained only on one or more of the grounds specified in
Section 100 of the Code of Civil Procedure. Proviso to
Section 125 empowers this Court to entertain the appeal
within a further period not exceeding 60 days, if it is
satisfied that the appellant was prevented by sufficient
cause from filing the appeal within the said period. In other
words, an appeal under Section 125 can be filed within a
maximum period of 120 days if this Court is satisfied that
there was sufficient cause for not filing the same within 60
days from the date of communication of the decision or
order appealed against.

25. Section 125 lays down that any person aggrieved
by any decision or order of the Tribunal can file an appeal to
this Court within 60 days from the date of communication of
the decision or order of the Tribunal. Proviso to Section 125
empowers this Court to entertain an appeal filed within a
further period of 60 days if it is satisfied that there was
sufficient cause for not filing appeal within the initial period
of 60 days. This shows that the period of limitation

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prescribed for filing appeals under Sections 111(2) and Section125 is
substantially different from the period prescribed under the
SectionLimitation Act for filing suits etc. The use of the expression
‘within a further period of not exceeding 60 days’ in Proviso
to Section 125 makes it clear that the outer limit for filing
an appeal is 120 days. There is no provision in the Act under
which this Court can entertain an appeal filed against the
decision or order of the Tribunal after more than 120 days.

26. The object underlying establishment of a special
adjudicatory forum i.e., the Tribunal to deal with the
grievance of any person who may be aggrieved by an order
of an adjudicating officer or by an appropriate commission
with a provision for further appeal to this Court and
prescription of special limitation for filing appeals under
Sections 111 and Section125 is to ensure that disputes emanating
from the operation and implementation of different
provisions of the SectionElectricity Act are expeditiously decided by
an expert body and no court, except this Court, may
entertain challenge to the decision or order of the Tribunal.
The exclusion of the jurisdiction of the civil courts (Section

145) qua an order made by an adjudicating officer is also a
pointer in that direction.

27. It is thus evident that the SectionElectricity Act is a
special legislation within the meaning of Section 29(2) of the
Limitation Act, which lays down that where any special or

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local law prescribes for any suit, appeal or application a
period of limitation different from the one prescribed by the
Schedule, the provisions of Section 3 shall apply as if such
period were the period prescribed by the Schedule and
provisions contained in Sections 4 to Section24 (inclusive) shall
apply for the purpose of determining any period of limitation
prescribed for any suit, appeal or application unless they are
not expressly excluded by the special or local law.

32. In view of the above discussion, we hold that
Section 5 of the Limitation Act cannot be invoked by this
Court for entertaining an appeal filed against the decision or
order of the Tribunal beyond the period of 120 days
specified in Section 125 of the Electricity Act and its
proviso. Any interpretation of Section 125 of the Electricity
Act which may attract applicability of Section 5 of the
Limitation Act read with Section 29(2) thereof will defeat
the object of the legislation, namely, to provide special
limitation for filing an appeal against the decision or order
of the Tribunal and proviso to Section 125 will become
nugatory.”
In Chhattisgarh State Electricity Board’s case (cited supra),
the Hon’ble Apex Court held that Section 5 of the Limitation
Act cannot be invoked by the Court to allow an appeal to be
filed, under Section 125 of the Electricity Act, 1963, after
more than 120 days.

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(v) In Gopinath v. CESTAT, Chennai reported in 2013
(32) STR 172 (Mad.), after considering the decision in SectionSingh
Enterprises v. Commissioner of Central Excise, Jamshedpur
[2008 (221) E.L.T. 163 (SC)], this Court, at Paragraphs 16
and 17, held as follows:

“16. In the order passed in Order in Original No. 96 of
2009 dated 16.12.2009, appeal was filed before the
Commissioner of Central Excise (Appeals) on 26.12.2011,
acknowledged on 29.12.2011 beyond the period of three
months plus discretionary period of three months. Tribunal
rightly referred to the decision in 2008 (221) E.L.T. 163 (SectionS.C)
[Singh Enterprises v. Commissioner of Central Excise,
Jamshedpur] holding that a statutory authority is not vested
with power to exercise any discretion beyond the period
stipulated by law and that the appeal filed beyond the
prescribed period of limitation is not maintainable as being
barred by limitation.

17. It is well settled law that once the period of
limitation has run itself out, the Appellate Authority does
not have power to condone the delay in filing the appeal
beyond the maximum period prescribed under the Act.
Referring to Singh Enterprises case [2008 (221) E.L.T. 163
(S.C)], Tribunal has rightly dismissed the appeal. We do not
find any infirmity in the order of the Tribunal and no

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substantial questions of law involved in this appeal and the
appeal is dismissed.”

(vi) SectionAlbert v. Commissioner of Service Tax, Chennai
reported in 2015 (37) STR 187 (Mad.), was a case of an ex-
parte adjudication and an appeal was filed with delay.
CESTAT, Madras, dismissed the appeal, as time barred.
Substantial questions of law raised before this Court, are,
(1) Whether the Appellate Tribunal is right in upholding the
order of the Commissioner (Appeals), dated 07.08.2012,
dismissing the appeal as time barred? and (2) Whether the
Appellate Tribunal ought to have entertained the appeal and
set aside the order of the Commissioner (Appeals) in the
interest of justice to offer opportunity to the Appellant to
defend itself? Accepting the contentions of the learned
counsel appearing for the Commissioner of Service Tax that
the period of limitation prescribed for hearing of the appeal,
by the Appellate Tribunal, under Section 85(3) of the
Finance Act, 1994, cannot be extended, and after referring
to the decisions in SectionSingh Enterprises v. Commissioner of
Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (SectionSC)],
JMJ Constructions v. Assistant Commissioner of Central
Excise, Salem [(2012) 56 VST 256 (Mad.)], SectionEarbis Engineering
Co. Ltd. v. Deputy Commissioner of Sales Tax, Ballygunge
Charge [(2012) 56 VST 258 (WBTT), Gopinath Sharma v.
CESTAT, Chennai [2013 (32) STR 172 (Mad.)] and Gopinath

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Sharma v. CESTAT [2013 (32) STR J78 (SC)], a Hon’ble
Division Bench of this Court dismissed the Civil Miscellaneous
Appeal. Substantial question of law, as to whether, the
Tribunal ought to have condoned the delay and entertained
the appeal, has been held against the appellant therein.
There is no reason, as to why, the reported judgment cannot
be made applicable to the instant appeal.

(vii) SectionIn Saradha Travels v. Commissioner of Service Tax
reported in 2015 (3) STR 433 (Mad.), an appeal was filed
with a delay of one year and six months. The Tribunal
dismissed the appeal. Adverting to the substantial questions
of law, raised by the appellant therein, at Paragraph 9, this
Court held as follows:

“9. The Tribunal relied on the decision of the
Honourable Supreme Court reported in 2008 (221) ELT 163
(SC) (SectionSingh Enterprises v. CCE, Jamshedpur) which is
followed by this Court in the decision reported in 2013-tiol-
168-HC-Mad (Gopinath and Sharma v. CESTAT) and dismissed
the appeal on the proposition that the Commissioner
(Appeals) cannot condone the delay beyond the stipulated
period.”

9. Reading of the decisions, extracted supra, makes it
abundently clear that the Commissioner of Customs
(Appeals), the appellate authority, has no powers to
condone the delay, beyond the extendable period and

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therefore, in the instant case, without adverting to the
merits, appeal has been dismissed. CESTAT, Chennai, has
concurred with the said decision. Perual of the material on
record shows that the appellant, at the time of filing the
instant appeal, has not raised any substantial questions of
law, on the aspect of limitation. By way of memo, dated
13.06.2016, the appellant has raised the following
substantial questions of law,
“(1) Whether in the facts and circumstances of the
case, the 1st respondent Tribunal was correct in not
considering the fact that there being no “lis” arising out of
the order of assessment passed in the Bill of Entry, dated
26.08.2006 which warranted the adjudication by the
Commissioner of Customs (Appeals) in asmuch as the
Revenue had already conceded and did not at all dispute the
eligibility of the appellant herein to the benefit of the
classification of the goods imported by them under Chapter
Sub-Heading 40 01 22 00 to the SectionCustoms Tariff Act and the
attendant benefit to Notification No. 21/2002, dated
01.03.2002 (Serial No. 191) resulting in collection of the
excess duty from them amounting to Rs. 2,55,560/- without
the authority of law, and therefore, in such a factual
position the ratio laid down by the Hon’ble Delhi High Court
in the judgment reported in 2010 (250) ELT 30 (Del.), should
have been applied to their case?

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(2) Whether the Tribunal was correct in not following
the recent judgment of the Hon’ble Supreme Court in 2015
(390) ELT 373 (SC) which held that in a case where an
applicant is not guilty of negligence, lapse, inaction or
pretended mistake, intentionally for delaying proceedings or
harassing the opposite party and was prosecuting their case
with due-diligence and in good faith, the principles of
Section 14 of the Limitation Act, 1963, should be applied
even by the quasi judicial bodies exercising powers under
Section 128 of Custom Act, 1962, thereby failing to follow
the ratio of the said judgment and finding fault with the
Commissioner of Customs (Appeals) for not considering and
disposing of the application for condonation of delay, dated
29.03.2007/03.04.2007 filed by the appellant?

10. In the foregoing paragraphs, we have already
discussed about the inapplicability of the above reported
judgment in SectionM.P. Steel Corporation v. Commissioner of
Central Excise reported in (2015) 7 SCC 58, to the facts on
hand. As the appeal filed before the Commissioner of
Customs (Appeals), has been rejected, as time barred and
confirmed by the CESTAT, Chennai, we are of the considered
view that there is no obligation on the authorities to advert
to the merits of the case.

11. Observation of the Tribunal that the appellant
cannot agitate the order, dated 20.02.2007, as it was not

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issued to the appellant, though contended by the learned
counsel, as erroneous and not legally sustainable, and that
the said ground was not the reason for the lower appellate
authority to dismiss the appeal and in such circumstance,
the instant appeal filed in this Court, can be entertained on
Substantial Question of Law No. 1, we are not inclined to
accept the same, for the reason that, even taking it for
granted, the Tribunal has made the abovesaid observation,
that would not render a time barred appeal to be
entertained by the appellate authority, beyond the
extendable period of limitation. Observations made by the
Tribunal, germane to the statutory period of limitation,
alone requires to be considered by this Court. A litigant has
to fall or succeed on the merits of his case, with reference
to the statutory provisions of the Statute and cannot take
advantage of any observation of the Court or the Tribunal.

12. When the appeal itself is time barred and when
the appellate authority or the CESTAT, Chennai, cannot
condone the delay, in terms of the statutory provisions,
prescribing a specific period of limitation, in the light of the
discussion and decisions, extracted supra, we are of the
considered view that the substantial questions of law raised
by the appellant cannot be held in favour of the appellant.”

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4. In view of the above, the writ petition is dismissed. No costs.

Consequently, connected Miscellaneous Petition is also closed.

(S.M.K.,J) (D.K.K.,J)
26.09.2019
Index: Yes / No
Internet: Yes / No
skm

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W.P.No.28200 of 2019

To

1.The Customs, Excise, Service Tax
Appellate Tribunal,
No.26, Shastri Bhavan Annex Building,
Haddows Road, Chennai 600 006.

2.The Commissioner of GST and
Central Excise (Appeals), Coimbatore,
Circuit Office @ Salem Commissionerate,
No.1 Foulks Compound, Anai Road,
Salem 636 001.

3.The Additional Commissioner of Central Excise,
No.1 Foulks Compound, Anai Road,
Salem 636 001.

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W.P.No.28200 of 2019

S.MANIKUMAR, J.

AND
SUBRAMONIUM PRASAD, J.

skm

W.P.No.28200 of 2019

26.09.2019

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