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.

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