RAJ CHEMICALS Vs. UNION OF INDIA

JUDGEMENT

(1.) In these proceedings under Article 226 of the Constitution, the Petitioner has sought a direction from this Court to condone the delay in filing an appeal against an order dated 5 March 2010 of the Assistant Commissioner, Central Excise, Navi Mumbai. An appeal lies against the order of the Assistant Commissioner to the Commissioner of Central Excise (Appeals), but no appeal was filed within the period of limitation prescribed by Section 35 of the Central Excise Act, 1944. The submission of the Petitioner is that in exercise of the powers conferred by Section 5 of the Limitation Act, 1963, it would be open to this Court while exercising its jurisdiction under Article 226 of the Constitution to condone the delay, even though it is beyond the period prescribed by Section 35 of the Central Excise Act, 1944. Alternatively, it has been prayed that the order of the Assistant Commissioner, dismissing the rebate applications may be made subject to the outcome of the Revision Application filed by the Petitioner before the Government of India.

(2.) By his order dated 5 March 2010, the Assistant Commissioner, Central Excise, rejected seven rebate applications filed by the Petitioner under Rule 18 of the Central Excise Rules, 2002. The adjudicating authority allowed the re credit of Central Excise duty amounting to Rs. 15.48 lakhs debited through the Cenvat credit account of the Petitioner. The Petitioner was granted liberty to file refund applications under Rule 5 of the Cenvat Credit Rules, 2004.

(3.) Section 35 of the Central Excise Act, 1944 provides that any person aggrieved by a decision or order of a Central Excise Officer, lower in rank than a Commissioner, may appeal to the Commissioner of Central Excise (Appeals) within sixty days from the date of the communication of the order. Under the proviso, the Commissioner (Appeals) is empowered, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, to allow it to be presented within a further period of thirty days. The submission of the Petitioner is that notwithstanding the fact that the Legislature under the proviso to Sub section (1) of Section 35 has laid down an outer limit of a further period of thirty days, beyond the original period of sixty days, for condonation of delay, this does not oust the power of the Court under Section 5 of the Limitation Act, 1963. In support, Counsel submitted that under Section 29 of the Limitation Act, 1963, the provisions of Sections 4 to 24 are to apply to the period of limitation prescribed for any suit, appeal or application under a special or local law only in so far as, and to the extent to which they are not expressly excluded by such special or local law. The submission is that in order that there should be an express exclusion, there must be an absolute embargo placed by the express words of the statute excluding the application of Section 5 of the Limitation Act, 1963.