The Commissioner of Central Excise vs Shri Arun Haridas Ashar also partner of Metro Furnishing and Others

Swatanter Kumar, C.J.—12 appeals filed u/s 35G of the Central Excise Act and 7 appeals filed u/s 130 of the Customs Act are admittedly, barred by time. Notices of Motion have been taken out for condonation of delay. The arguments raised against the prayer is that this Court has no power to condone the delay in face of the provisions of Section 35G of the Central Excise Act and Section 130 of the Customs Act.

The learned Counsel appearing for the appellant relied upon the Full Bench judgment of this Court in the case of The Commissioner of Income Tax Vs. Velingkar Brothers, wherein the Court took the view that Section 5 of the Limitation Act, 1963 was attracted in the appeals filed u/s 260A of the Income Tax Act, 1961 as there was no specific exclusion of the application of the Limitation Act. Firstly, the view of the Full Bench of this Court cannot be termed as a correct exposition of law in face of the judgment of the Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, and secondly, even in the case of Prakash H. Jain Vs. Ms. Marie Fernandes, , where the Supreme Court took the view that in absence of statutory provisions for condoning the delay recourse to inherent power would not be permissible. Still in the case of Subal Paul Vs. Malina Paul and Another, , the Supreme Court clearly stated the applicability of the general rule and held as under:

But an exception to the aforementioned rule is ion matters where the special Act sets out a self contained Code, the applicability of the general law procedure would be impliedly excluded. [See Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki and Ors. AIR 1988 SC 815.

Thus, in our opinion, the applicants cannot take much benefit of the Full Bench judgment of this Court.

All the contentions raised in these matters have been duly considered by us in the judgment of the court pronounced today in the case of Commissioner, Central Excise, PuneII v. Shruti Colorants Ltd. Central Excise Appeal (L) No. 114 of 2008, where this objection has been accepted by the court and all the applications have been dismissed as not maintainable consequently holding that appeals do not survive for consideration. For the reasons stated in that judgment in the case of Commissioner, Central Excise, PuneII v. Shruti Colorants Ltd.

(Central Excise Appeal (L) No. 114 of 2008), we also dismiss all the applications for condonation of delay as not maintainable and consequently, the appeals filed do not survive for consideration on merits. The appeals and applications are accordingly, disposed of.