NAVIN LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) BY the order in original dated 31st October, 2003, passed by the Deputy Commissioner of Central Excise, petitioner's rebate claims were rejected. The petitioner received the said order in original on 20th december, 2003 and preferred appeal before the Commissioner of Central excise (Appeals) on 28th April, 2004. By the impugned order dated 31st May, 2004 the Commissioner of Central Excise (Appeals) held that the appeal was not maintainable being barred by limitation prescribed under section 35 of central Excise Act, 1944 (for short 'central Excise Act ). The petitioner has preferred this writ petition challenging the order of the Commissioner of Central Excise (Appeals ).

(2.) MR. Hardik Modh, the learned Counsel for the petitioner submitted that section 5 of the Limitation Act, 1963 is applicable by virtue of section 29 (2)thereof to the appeal under section 35 of the Central Excise Act being special law and section 5 can be availed of for the purpose of extending the period beyond 30 days of expiry of limitation as provided under section 35 of the central Excise Act. In support of his submission, the learned Counsel for the petitioner relied upon the judgments of the Supreme Court in (Mangu Ram v. Municipal Corporation of Delhi), A. I. R. 1976 S. C. 105, (Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker), 1995 (5) S. C. C. 5 and (P. Sarathy v. State Bank of India), 2000 (5) S. C. C. 355.

(3.) MR. R. V. Desai, the learned Senior Counsel for the revenue, on the other hand, submitted that the Commissioner of Central Excise (Appeals) is not empowered to condone the delay in excess of period prescribed under section 35 of Central Excise Act and the provisions of Limitation Act, 1963 are not applicable. He relied upon the judgments of the Supreme Court in (Sakuru v. Tanaji) 1985 (22) E. L. T. 327 : A. I. R. 1985 S. C. 1279, (Prakash H. Jainv. Marie Fernandas), 2004 (2) Bom. C. R. (S. C.)592 : 2003 (8) S. C. C. 431 and (Un-ion of lndia v. Popular Construction Co.), 2002 (2) Bom. C. R. (S. C.)123 : 2001 (8)S. C. C. 470. He also relied upon the judgment of Allahabad High Court in the case of (E. Sefton and Co. Pvt. Ltd. v. Government of India), 1993 (63) E. L. T. 626.