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2007 DIGILAW 1603 (PNJ)

Indian Sulphacid Inds. Ltd. v. Union of India

2007-09-05

AJAY K.MITTAL, M.M.KUMAR

body2007
JUDGMENT M.M. Kumar, J. - 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:- "Counsel fairly concedes that in view of the law laid down by the Apex Court in Union of India v. M/s. Popular Construction Co., 2001(8) Supreme Court Cases 470, delay in filing the appeal under Section 35 of the Central Excise Act, 1944 beyond 90 days could not be condoned. The writ petition being devoid of any merit is dismissed in limine." The afore-mentioned order was challenged by the applicant in SLP bearing SLP (Civil) No. 3729 of 2005. The Special Leave Petition was disposed of by Honble the Supreme Court on 11.11.2005 by observing as under : "The learned counsel appearing on behalf of the petitioners states that the concession which has been recorded in the High Courts order was incorrectly made. We are of the view that this is an issue which should be raised before the High Court. On the basis of the facts as recorded in the High Courts order, the Special Leave Petition (C) No. 3729/2005 is dismissed." 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 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. When the matter came up for hearing before this Court on 23.1.2004, learned counsel for the applicant who had appeared for the petitioner in the main petition made a statement that the judgment of Honble the Supreme Court in the case of Union of India v. M/s. Popular Construction Co., 2001(8) SCC 470 did not permit condonation of delay in filing the appeal under Section 35 of the Act before the Commissioner (Appeals). Accordingly, the writ petition was dismissed. 4. 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 Honble 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 Honble 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. 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 Honble the Supreme Court. 5. Notice of the application was issued and reply by the revenue-non-applicant has been filed. 6. After hearing learned counsel for the parties at a considerable length, we find that the statement made by the learned counsel for the applicant at the time of making the statement in the writ petition as recorded in the order dated 23.1.2004 was erroneous. The statement appears to have been made in a bona fide belief that provisions of Section 34(3) of the 1996 Act and Section 35 of the Act are pari materia and would exclude the application of Section 5 of the Limitation Act. The correct position of law is that Section 34(3) of the 1996 Act by virtue of its proviso completely foreclose the discretion of the Court to condone the delay beyond 3 months plus 30 days because the expression but not thereafter has been used by the proviso to sub-section (3) of Section 34 of the 1996 Act. In Section 35 of the Act there is no such expression and entirely different construction may follow. It would be appropriate to make a reference to Section 34(3) of the 1996 Act which reads as under : "34. Application for setting aside arbitral award. - (1) and (2) xx xx xx xx. In Section 35 of the Act there is no such expression and entirely different construction may follow. It would be appropriate to make a reference to Section 34(3) of the 1996 Act which reads as under : "34. Application for setting aside arbitral award. - (1) and (2) xx xx xx xx. (3) An application for setting aside may not made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal : Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter." (Italics supplied) The aforementioned provision was interpreted by Honble Supreme Court in Popular Construction Co.s case (supra) in the following words : "Had the proviso to Section 34 merely provided for a period within which the court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5." Applying the principles laid down in Vidyacharan Shukla v. Khubchand Beghel, AIR 1964 SC 1099 and Hukamdev Narain Yadav v. Lalit Narain Mishra, 1974(2) SCC 133 their Lordships further observed as under :- "Thus, where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the specific inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase but not thereafter wholly otiose. No principle of interpretation would justify such a result. Apart from the language, "express exclusion" may follow from the scheme and object of the special or local law : "Even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be 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". 7. It would also be appropriate to make a reference to Section 35 of the Act which is absolutely different than the provisions of Section 34(3) of the 1996 Act as held by Honble the Supreme Court. Section 35(1) of the Act reads as under :- "Section 35. Appeals to Commissioner (Appeals) : (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days." 8. In view of the above, we are inclined to accept the contention raised by the counsel for the applicant that he committed a bona fide mistake in making the statement before a Division Bench which resulted into passing of order dated 23.1.2004 by placing reliance on Popular Construction Co.s case (supra). The admission is found to be erroneous and is a result of bona fide mistake. The admission is found to be erroneous and is a result of bona fide mistake. We are further of the view that no benefit is likely to be resulted from such an admission made by the counsel for the applicant that has resulted in passing of order dated 23.1.2004. Therefore, the order dated 23.1.2004 is liable to be recalled. For the reasons afore-mentioned this application succeeds. The order dated 23.1.2004 is recalled. Office is directed to list the main petition for hearing on 13.9.2007 as per roster. Application allowed.