INDIAN SULPHACID INDS. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS application filed under Article 226 of the Constitution read with Section 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908 prays for review and recalling of order dated 23.1.2004 passed by a Division Bench of this Court in Civil Writ Petition No. 1139 of 2004. It has further been prayed that after recalling of the afore-mentioned order the writ petition be decided on merits. It would be appropriate to first read order dated 23.1.2004 which is as under:-

(2.) IT is appropriate to mention that in the writ petition filed under Article 226 of the Constitution the applicant had challenged order dated 2.9.2003 passed by the Commissioner of Central Excise (Appeals) under Section 35 of the Central Excise Act, 1944 (for brevity 'the Act'). The appeal was dismissed by holding that the order in original was received by the applicant on 20.12.2002 and appeal was filed on 1.7.2003 which was after the expiry of 6 months 11 days from the date of receipt of the impugned order. The Commissioner (Appeals) referred to Section 35 of the Act and observed that the appeal could have been filed within 60 days from the date of receipt of the order by the appellant which could be further extended by the Commissioner (Appeals) by another 30 days. The appeal was dismissed on the ground that there was no provision under Section 35 of the Act for filing of appeal beyond 90 days and therefore the appeal which was filed after delay of 6 months 11 says was held to be time barred and rejected on that ground.

(3.) MR . B.R. Mahajan, learned counsel for the applicant has submitted that there was an error in making admission before this Court on his part as recorded in the order dated 23.1.2004 in as much as the judgment of Hon'ble the Supreme Court in the case of Popular Construction Co. (supra) was wrongly relied. According to the learned counsel the judgment in Popular Construction Co.'s case (supra) did not deal with the period of limitation as prescribed by Section 35 of the Act and in fact it deals with the period of limitation as prescribed in Section 34(3) of the Arbitration and Conciliation Act, 1996 (for brevity 'the 1996 Act'). According to the learned counsel the language of the proviso to Section 34(3) of the 1996 Act as interpreted by Hon'ble the Supreme Court is such that Section 5 of the Limitation Act, 1963 (for brevity 'the Limitation Act') does not remain applicable and it has to be regarded as expressly excluded within the meaning of Section 29(2) of the Limitation Act. However, he has placed reliance on para 8 of the judgment in Popular Construction Co.'s case (supra) to submit that had the proviso not been there then the provisions of Sections 4 to 24 of the Limitation Act would have remained applicable. He has pointed out that language of Section 35 of the Act is entirely different and there is nothing in that provision which may be considered pari materia to the proviso to Section 34 of the 1996 Act as interpreted by Hon'ble the Supreme Court.