Pranam Enterprises vs Commissioner Of Sales Tax And Ors.
2004 Latest Caselaw 519 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. Rule. With the consent of parties, the matter is taken up for final disposal.

2. This petition is directed against the order of the Sales Tax Appellate Tribunal dated 26.02.2003 whereby the petitioner's application for reference under Section 45(1) of the Delhi Sales Tax, Act, 1975 (hereinafter referred to as 'The DST Act) was rejected on the ground of limitation. The reference application was filed in respect of an order of the Appellate Tribunal passed on 17.12.2001 and served on the petitioner on 27.03.2002. The impugned order whereby the petitioner's reference application under Section 45(1) of the DST Act was rejected is challenged on the ground that delay in filing the reference application ought to have been condoned upon an application of the provisions of Section 5 of the Limitation Act, 1963. The Sales Tax Appellate Tribunal held that the DST Act was a specific law and which made special provisions for limitation, different from that provided by the Limitation Act and, therefore, the applicability of Section 5 of the Limitation Act was excluded. And, as a consequence of this conclusion, it was held that the reference application, being beyond the condonable period, had to be rejected on the ground of limitation.

2. The facts as regards the merits of the case are not relevant and we need not refer to them. However, some procedural facts need to be mentioned. In the petitioner's case, the Sales Tax Appellate Tribunal had initially passed an order on 17.12.2001. Being aggrieved by this order, the petitioner herein filed a review petition under Section 48(6) of the DST Act on 29.08.2002. The review petition was rejected by the Appellate Tribunal on 16.09.2002. Being aggrieved thereby the petitioner filed a writ petition being CWP No.7838/2002 before this Court on 27.11.2002. On 09.12.2002, the writ petition was dismissed on the ground that the petitioner had an efficacious statutory remedy available to it and also because there was a controversy with regard to certain factual aspects. It is thereafter that the petitioner filed the reference application under Section 45(1) in respect of the order of the Appellate Tribunal dated 17.12.2001, which the petitioner received on 27.03.2002. The reference application was filed on 27.12.2002, i.e., 9 months after a copy of the order dated 17.12.2001 was served on the petitioner. Reading the provisions of Section 45(1) of the DST Act, it is clear that an application for requiring the Appellate Tribunal to refer to the High Court any question of law arising out of the order in question is to be made in the first instance within 60 days from the date of such order. In case the application for reference is not filed within this period, then, in terms of the proviso to Section 45(1) of the DST Act, the Appellate Tribunal may, if it is satisfied that the person seeking the reference was prevented by sufficient cause from presenting the application within the said period of 60 days, allow the application to be presented within a further period "not exceeding thirty days". Since this is the provision which is in question, it is set out hereinbelow:-

"45. Statement of case to the High Court

(1) Within sixty days from the date of an order passed by the Appellate Tribunal under sub-section (6) of section 43, the dealer or the Commissioner may, by application in writing, and accompanied, where the application is made by a dealer, by a fee of fifty 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 dealer or the Commissioner 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.

xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx"

3. The question that arises in this petition is whether an application for reference can be presented before the Tribunal even after the extended 30 day period prescribed in the proviso to Section 45(1) of the DST Act? This Court, while considering the analogous provisions of Section 128 of the Customs Act, 1962 and Section 35 of the Central Excise Act, 1944 in its decisions in the case of M/s Delta Impex v. Commissioner of Customs (CUS AC 9/2003 decided on 13.02.2004) and M/s M.R. Tobacco Pvt. Ltd. V. Union of India and Others (WP(C) 8592/2003 decided on 20.04.2004) respectively, has answered the question in the negative. The proviso to Section 128 of the Customs Act, 1962 reads as under:-

"Provided that "the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days."

The proviso to Section 35(1) of the Central Excise Act, 1944 reads as under:-

"Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days."

4. The Division Bench of this Court, in both the cases referred to above, held that these provisos specifically excluded the operation of the provisions of Section 5 of the Limitation Act, 1963 beyond the condonable period prescribed therein. These decisions were rendered after considering various decisions of the Supreme Court which included -

i) Collector of C.E. Chandigarh v. Doaba Cooperative Sugar Mills: 1988 (37) ELT 478 (SC);

ii) Mills India Limited v. Assistant Collector of Customs: 1987 (30) ELT 641 (SC);

iii) Mohd Ashfaq v. State Transport Appellate Tribunal: ;

iv) Commissioner of Sales Tax v. Parson Tools & Plant: 35 STC 413;

v) Smt Ujjam Bai v. State of U.P.: 1963 (1) SCR 778;

vi) Jagannath Prasad v. State of U.P.: ;

vii) Lalji Haridas v. State of Maharashtra and Anr: ;

viii) Hukumdev Narain Yadav v. Lalit Narain Mishra: ;

ix) Commissioner of Sales Tax, U.P. v. Madan Lal Das and Sons: ;

x) Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker: ;

xi) Union of India v. Popular Construction Company: ;

xii) Mangu Ram v. Municipal Corpn. of Delhi: ;

xiii) Kaushalya Rani v. Gopal Singh: ; and

xiv) India House v. Kishan N. Lalwani:

5. In M.R. Tobacco (supra), this Court observed as under:-

"15. ......If one were to compare the provisions of section 5 of the Limitation Act, 1963 and the proviso to section 35(1) of the said Act, one would find that they are essentially the same in that they both permit the presentation of an appeal beyond the limitation period if the appellant is able to satisfy the appellate authority that the appellant was prevented by sufficient cause from presenting the appeal within the prescribed period of limitation. The difference in the two provisions lies in the fact that while section 5 of the Limitation Act, 1963 is "open-ended", the proviso to section 35(1) also stipulates that such appeal which is beyond time can only be presented within a further period of thirty days and not thereafter. By prescribing the maximum period during which an appeal may be presented beyond the limitation prescribed, the legislative intent is clear that the "open-ended" provision of section 5 of the Limitation Act, 1963 was not to apply. To this extent, there is an express exclusion of the provisions of section 5 of the Limitation Act, 1963.

16. xxx xxx xxx xxx

17. In view of the foregoing discussion, we find that there is no distinction between the present case and that of Delta Impex (supra). The Tribunal was correct in upholding the decision of the Commissioner (Appeals) that the Commissioner (Appeals) had no power to condone the delay beyond the further period of 30 days from the expiry of the time within which the appeal ought to have been filed. The Central Excise Act, 1944 is a complete code and the provisions of Section 35 clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to entertain any application for condensation of delay or to entertain the appeal itself."

6. Thus, it is clear that the issue raised in the present writ petition is no more res integra and is fully covered by our decisions in the case of M/s Delta Impex (supra) and M/s M.R. Tobacco (supra) which considered the parallel and analogous provisions contained in the Customs Act, 1962 and the Central Excise Act, 1944 respectively.

7. In fact, the proviso to Section 45(1) of the DST Act is even more restrictive than the Provisos to Section 128(1) and Section 35(1) of the Customs Act, 1962 and the Central Excise Act, 1944 respectively. This is so because the words contained in those two Acts are "allow it to be presented within a period of thirty days", whereas the words used in the proviso to Section 45(1) are "allow it to be presented within a further period not exceeding thirty days". The exclusion of the applicability of Section 5 of the Limitation Act is more accentuated in the case of the proviso to Section 45(1) of the DST Act. Therefore, it is not possible for us to agree with the contention of the learned counsel for the petitioner that there is no express exclusion of the applicability of Section 5 of the Limitation Act, 1963. The learned counsel referred to Section 62(2) of the DST Act in an attempt to show that the provisions of the Limitation Act have not been excluded. The said Section 62(2) reads as under:-

"62. Extension of period of limitation in certain cases

(1) xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx

(2) In computing the period laid down under sections 43, 45, 46 and 47, the provisions of sections 4 and 12 of the Limitation Act, 1963 (36 of 1963) shall, so far as may be, apply.

(3) xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx."

8. The above provision, merely states that in computing the period laid down, inter alia, in Section 45, the provisions of Sections 4 and 12 of the Limitation Act, 1963 shall, so far as may be, apply. This does not, in any way, entail that the provisions of Section 5 of the Limitation Act, 1963 have not been excluded. It merely states that, to the extent applicable, the provisions of Section 4 and 12 of the Limitation Act would be taken into consideration for computing the original period of sixty days under Section 45(1) and the extended period of thirty days under the proviso to Section 45(1) of the DST Act. Sub-Section 2 of Section 62 of the DST Act does not, in any way, dilute the restriction of providing a maximum of 30 days within which the application may be presented. It only provides a method of calculating those 30 days. The learned counsel for the petitioner contended that looking to the scheme of the Act, there is no express exclusion of the provisions of Section 5 of the Limitation Act, 1963. We are unable to agree with this contention in view of the discussion above and the detailed consideration of analogous provisions in our aforesaid decisions in the cases of M/s Delta Impex (supra) and M/s M.R. Tobacco (supra).

9. In these circumstances, we find that the Sales Tax Appellate Tribunal committed no jurisdictional or other error in rejecting the petitioner's application for reference under Section 45(1) of the DST Act as being barred by limitation. The writ petition is dismissed. Rule is discharged.