Applicability of limitation Act in Excise matters

Whether Limitation Act is applicable to special Acts, when its application is not  expressly excluded,  is the subject matter of discussion in this article.

By judgment delivered in Commissioner of Customs, Central Excise, Noida v. Punjab Fibres Ltd., Noida (2008 (3) SCC 73) The Supreme Court  held that the High Court has no power to condone delay in seeking reference under Section 35-H (before amendment in 2005)of the Excise  Act. Doubting correctness of the view reference was made to larger Bench. By judgment dated 27.3.2009 a three-judge Bench in Commissioner of Customs & Central Excise v. M/s. Hongo India (P) Ltd. & Anr. 2009 (4) SCALE 374 concurred with the view taken by the two-judge Bench in Punjab Fibres case.

S. 35 H (as stood before its deletion in 2005) of Excise Act read as under:

"35H. Application to High Court - (1) The Commissioner of Central Excise or the other party may, within one hundred  and eighty days of the date upon which he is served with notice of an order under section 35C passed before the 1st   day of July, 2003 (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, apply to the   High Court to direct the Appellate Tribunal to refer to the  High Court any question of law arising from such order of the Tribunal."

            Except providing a period of 180 days for filing reference application to the High Court, there is no other clause for condoning the delay if reference is made beyond the said prescribed period.     As  already pointed out that in the case of appeal to the Commissioner, Section 35 provides 60 days time and in addition to the same, Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown.    Likewise, Section 35B provides 90 days time for filing appeal to the Appellate Tribunal and sub-section (5) therein enables the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Likewise, Section 35EE which provides 90 days time    for filing revision by the Central Government and, proviso to the same enables the revisional authority to condone the delay for a further period of 90 days, if sufficient cause is shown, whereas in the case of appeal to the High Court under Section 35G and reference to the High Court under Section 35H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference.  However, there is no further clause empowering the High Court to condone the delay after the period of 180 days.

     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,

the Supreme Court in Punjab Fibres Ltd., Noida (supra),      while considering

the very same question and following Singh Enterprises vs. Commissioner of Central Excise,     Jamshedpur    and   Others,   (2008)   3   SCC   70

concluded that "the High Court was justified in holding that there was no power for condonation of delay in filing reference application."

In Commissioner of Customs & Central Excise v. M/s. Hongo India (P) Ltd. & Anr. 2009 (4) SCALE 374, the Supreme Court held that 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.

In this case, an argument was raised based on Section 29 of the Limitation Act, which reads as under:

"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 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." 

It was contended 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 Limitation Act of which the operation is to be excluded. The Supreme Court said :

“in this regard, we have to see the scheme of the special law here in this case is Central 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 Limitation 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 Sections 4 to 24 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, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.     The scheme of the   Central 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.”