Calypso Foods (P) Ltd. v. Jt. Commissioner of Central Excise. , Cus. and Service Tax
2010-03-11
RAM MOHAN REDDY
body2010
DigiLaw.ai
ORDER Ram Mohan Reddy, J.— The challenge in this petition is the legality and validity of the order dt. 21-8-2009 dismissing Appeal No. Excise/295/09 in E/Stay/207/09 of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, FKCCI, WTC Building, Bangalore, and confirming the order dated 11-3-2009 of the Commissioner of appeals dismissing Appeal No. 74/2008, filed after 104 days of receipt of the order impugned since Section 35(I) of the Central Excise Act, 1944 empowers the Appellate Authority to condone the delay of 30 days beyond the normal period of 60 days in filing the appeal, having regard to the law laid down by a larger Bench of the Apex Court in the case of Commissioner of Customs and Central Excise Vs. Hongo India (P) Ltd. and Another, (2009) 315 ITR 449 SC . 2. The observations of the Larger Bench of the Apex Court in The Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur, AIR 1975 SC 1039 , in the circumstances is apposite: If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so, would be entrenching upon the preserves of the Legislature, the primary function of a Court of law being jus dicere and not jus dare. If the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time-limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time limit specified in the statute, by excluding the time spent in the prosecuting in good faith and with due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act.
Where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the Court to give effect to the same without scanning its wisdom or policy and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver more so if the statue is a taxing statute. 3. Yet again in Hongo India (P) Ltd. (supra), the Larger Bench of the Supreme Court having regard to the language used in Sections 35, 35(B), 35(C), 35(G) and 35H of the Central Excise Act, 1944 held that the legislature intended the Appellate Authority to entertain the appeal by condoning delay upto 30 days and in the absence of any clause to condone the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. 4. In the light of the aforestated legal position, no exception can be taken to the reasons, findings and conclusions arrived at by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, FKCCI- WTC Building, Bangalore, in the order impugned. 5. The writ petitions being without merit are rejected.