Wednesday 15 April 2009

Who's advising these people??

Ram Jethmalani had refused to appear before Justice B.N. Agarwal in the Ansals case. So, Justice B.N. Agarwal recused himself, and us mere mortals saw it as the most blatantly abusive forum choosing exercise ever.

But there was some logic to it. The case had no chance before BNA. It might have got relief before someone else, so why not?

But our ladies with the lost footwear, those contemnors who had finally got some relief from Justice Agarwal, filed an application asking BNA to recuse himself from the case, because, he has admitted in public that he is not a Sanyasi who can keep his temper in check when a former Law Minister accuses him of shielding the corrupt judges. Oh, and the application, apart from containing their usual contemptuous stuff like Supreme Court judges are conspiring in the Genocide (!!!) against them and should be capitally punished, was garnished with a little prayer seeking a trial for Goolam Vahanvati on the charge of criminal conspiracy for giving an anti-constitutional opinion to the Court in their matter.

So..... today, Justice Agarwal recused himself from the matter with a smile, Mr. Vahanvati also found an excuse for his discharge from the matter, but the ladies seemed a little upset when Justice Singhvi told them that they cannot pass any further orders when one of the Judges has recused himself from the matter.

These ladies are on a roll, recording one win after another in these little battles. But where are they headed??

Wednesday 8 April 2009

Just a snippet

Section 29(2) of the Limitation Act, 1963 provides that when any special law provides a period of limitation different from the period prescribed by its Schedule, then the provisions contained in Section 4 to 24 shall apply only to the extent they are not expressly excluded by the special law. This includes Section 5, which permits the filing of an appeal or an application beyond the period of limitation upon sufficient cause being shown.

In Commissioner of Customs and Central Excise v. M/s Hongo India (P) Ltd., 2009 (4) SCALE 374, the Supreme Court was asked to decide whether a Reference Application under Section 35-H(1) [Section now stands omitted] of the Central Excise Act, 1944 can be filed beyond the prescribed period of 180 days. The section does not have any provision that permits the extension of the period of limitation, nor a provision that excludes the provisions of the Limitation Act.

It was therefore argued that since there is no "express" exclusion of the provisions of the Limitation Act, the reference could be filed beyond the prescribed period by virtue of Section 29(2).

Justice P. Sathasivam, speaking for a 3-Judge Bench, referred to other provisions of the Central Excise Act like Section 35, 35-B, 35-EE, etc. which specifically empower the authority concerned to condone the delay upto a specified period. Relying on this, he held that since there is no provision permitting the extension of time under Section 35-H, it means that the prescribed period cannot be stretched by the Court.

Regarding Section 29(2), he says that even if a special law does not exclude Section 4 to 24 with an express reference, it is 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."

hmmmm... interesting.

Would recommend the judgment for its clarity.