Vinayak Sahakari Sakhar Karkhana ... vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 538 Bom

JUDGMENT

Patil Naresh H., J.

1. The petitioner challenges the order passed by the Collector, Central Excise (Appeals) dt. 10-11-1982 which was confirmed by an order passed by the Customs Excise and Gold Control Tribunal (for short CEGAT) dt. 23-9-1993. The petitioner filed appeal against the order passed by the Superintendent, Central Excise on the application of the petitioner. The petitioner claimed exemption from payment of excise duty. The appeal filed by the petitioner was dismissed on the ground that the Appellate Authority is not a Court and the provisions of Section 5 of the Limitation Act are not applicable to the proceedings of the appeal. This finding was reached because the petitioner sought condonation of delay of four years in filing appeal before the Collector (appeals). It is an admitted position that the petitioner did not prefer a separate application for condonation of delay but in the body of the appeal memo itself the petitioner had prayed for condonation of delay. Shri K.B. Choudhari, learned Counsel for the petitioner Karkhana submitted that there is no specific exclusion of provisions of Section 5 of the Indian Limitation Act in its application to the proceedings of appeal. It is the submission of the learned Counsel that the Appellate Tribunal is a Court. The functions of the Tribunal are quasi judicial in nature, it can safely be termed as a Court. Learned Counsel for the petitioner further submitted that the view adopted by the Appellate Tribunal are erroneous and, therefore, the impugned order is required to be quashed and set aside.

2. Shri Sharma, learned Counsel for the respondents submitted that the Appellate Tribunal could not be termed as a Court. The provisions of Section 5 of the Limitation Act are excluded in its application to the proceedings of the appeal. Therefore, the delay could not be condoned. The delay was abnormal one and, even otherwise, on merits of the matter, the petitioner had no legal case for seeking condonation of delay.

3. The legal position which emerges is that the Tribunal whose function is quasi judicial in nature need not necessarily be a Court. The forum which functions as a Court shall have the trappings of the Court.

4. For appreciating as to whether the provisions of Section 5 of the Indian Limitation Act apply to the proceedings before the Court, the scheme of the enactment will have to be looked into minutely. If it is found that the provisions of the Limitation Act are specifically excluded from its application to the proceedings of the Court then it would not be permissible to apply the provisions of the Limitation Act. The provisions of Section 5 of the Limitation Act reads thus:

5. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for no preferring the appeal or making the application within such period.

Explanation:- The fact that the appellant or the 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.

5. It would be necessary for us to reproduce the provisions of Section 29 of the Limitation Act which read thus:

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 Sections 4 to 24 (inclusive) shall apply only insofar 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 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 26 and the definition of "easement" in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882, may for the time being extend.

6. We have considered the provisions of the act in question. The relevant provisions for the purpose of the present petition demonstrate that the limitation for filing appeals was provided under Section 35 of the Central Excise and Salt Act, 1994 (for short the Act of 1944). The provisions of Section 35 provides that any person being aggrieved by any decision or order passed by the Central Excise Officer may within three months from the date of such decision may appeal to the Appellate Authority.

7. The issue as to whether the Appellate Tribunal functions as a Court and the provisions of Section 5 and Section 29(2) of the Limitation Act apply to the proceedings of the appeals preferred before the Appellate Tribunal is no more res integra. In the case of (Navinon Ltd. v. Union of India and Anr.) , the Division Bench of this Court has answered these two issues. It is held by the Division Bench that the Commissioner of Central Excise (Appeals) empowered to hear appeals under Section 35 of the Central Excise Act, cannot be treated as forum functioning as a Court nor the said authority can be said to have trappings of the Court. The Division Bench further held that Section 29(2) of the Limitation Act is not attracted to the appeals preferred under Section 35 of the Act and, consequently, Section 5 of the Limitation Act would not be applicable to such appeals.

8. We find it necessary to reproduce para 16 of the said judgment.

16. The Commissioner of Central Excise (appeals) empowered to hear appeals under Section 35 of Central Excise Act, in our considered view, cannot be treated to be forum functioning as a Court nor the said authority can be said to have trappings of the Court. The Commissioner of Excise (appeals), though, is a Appellate Authority under Section 35 but his decisions do not satisfy the essential tests of judicial pronouncement. He cannot be said to possess the attributes of a Court. In the entire Central Excise Act, there is no provision which even makes the Commissioner of Central Excise (appeals) a Court for limited or specific purpose. The Appellate Authority under Section 35 of the Central Excise Act is only executive authority; true it is while hearing the appeals contemplated under Section 35, the Commissioner of Central Excise (appeals), acts quasi judicially. But that would not make Commissioner, Central Excise a Court or an authority functioning as a Court or having the trappings of a Court. In view of the admitted position that the appeal was preferred by the present petitioner under Section 35 beyond 30 days of the expiry of statutory period of 60 days, the Commissioner of Central Excise (appeals) cannot be said to have committed any error in not entertaining the appeals as barred by limitation prescribed under Section 35 of the Central Excise Act.

9. We therefore find that no fault could be found with the view adopted by the Appellate Tribunal. Shri K.B. Choudhari, learned Counsel for the petitioner submitted that in exercise of writ jurisdiction of this Court, the delay for filing appeal be condoned. From the material placed on record, we do not find that the petitioner's request deserves consideration.

10. For the reasons stated above, we are of the view that no interference is called for in the impugned order passed by the tribunal. The petition fails and accordingly dismissed.

11. Rule discharged with no order as to costs.