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The Bombay Municipal Corporation Vs. the Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Judge
Reported in(1983)LC1532DTri(Mum.)bai
AppellantThe Bombay Municipal Corporation
RespondentThe Collector of Central Excise
Excerpt:
1. this is an appeal transferred to the tribunal under section 35-p of the central excises & salt act, 1944 preferred by the municipal corporation of greater bombay against the order no. 997/b-l-l 19/81 dated 7.9.81 passed by the appellate collector of central excise, bombay, rejecting their appeal to him under old section 35 as time-barred. in the appeal the appellants pray that the appeal has been wrongly rejected as time-barred and request that the order of the appellate collector of central excise be set aside and their appeal be remanded to him for decision on merits, particularly when in an identical case vide order no. 1639/80 dated 23.9.80 the same appellate authority has held that no duty is leviable on asphalt mix. in support of the contention, the learned advocate shri.....
Judgment:
1. This is an appeal transferred to the Tribunal under Section 35-P of the Central Excises & Salt Act, 1944 preferred by the Municipal Corporation of Greater Bombay against the Order No. 997/B-l-l 19/81 dated 7.9.81 passed by the Appellate Collector of Central Excise, Bombay, rejecting their appeal to him under old Section 35 as time-barred. In the appeal the appellants pray that the appeal has been wrongly rejected as time-barred and request that the order of the Appellate Collector of Central Excise be set aside and their appeal be remanded to him for decision on merits, particularly when in an identical case vide Order No. 1639/80 dated 23.9.80 the same appellate authority has held that no duty is leviable on asphalt mix. In support of the contention, the learned Advocate Shri Dalai has argued that a request was made to the Appellate Collector of Central I Excise for extending the period of presentation of the appeal, which was filed late by about 20 days and the Appellate Collector did not comply with this request though he should have done so on the basis of Section 29 of the Limitation Act, as the appellants explained satisfactorily the reasons for delay in filing their appeal. Shri Dalai has drawn our attention to the preamble to the Limitation Act and stated that the purpose is to consolidate and amend the law for limitation or suits and other proceedings and for the purposes connected therewith. Since under the present Section 35-A of the Central Excises & Salt Act, 1944 corresponding to old Sec, 35 the provision has been made for extending the period for filing the appeal, the Limitation Act is not now applicable to the appeals filed before the Collector of Central Excise (Appeals1. Shri Dalai has drawn our attention at Section 4 to 24 of the Limitation Act and the exception under Section 29 ibid. Fn support of his argument Shri Dalai has relied on Supreme Court's decision in the case of Commissioner of Sales-tax V.P. v. Madanlal Das & Sons Bareily 38, 1976 Sales-Tax Cases, P 543. He has also cited another judgment of the Supreme Court in the case of Mohammed Asfaq appellant v. the State Transport Appellate Tribunal U.P. and other respondents . Shri Dalai has further submitted that the Limitation Act applies to the Tribunal like the one Constituted under the Central Excises and Salt Act, 1944 vide relating to the case of Shri B.B. Patil v. the State, para 11. He has also relied on another judgment of the Bombay High Court vide E.L.T. December, 81 page 919 to show that the provisions of Limitation Act would apply to Section 128 of the Customs Act, 1962 and by analogy to old Section 35 of the Central Excises & Salt Act, 1944. In view of these pleadings Shri Dalai has argued that the appeal of Municipal Corporation of Greater Bombay to the Appellate Collector of Central Excise, Bombay should be held as not hit by the time-bar under old Section 35 and the Appellate Collector of Central Excise be directed to decide the same on merits.

2. Shri N.K. Pattekar for the department has submitted that the goods namely asphalt mix are correctly classifiable under item 68 of the Central Excise Tariff and the conditions of exemption thereunder have not been satisfied. Therefore, even on merits the appellants do not have a strong case. He has further submitted that the appellants have described the process of manufacture and this satisfies the definition of manufacture under Section 2 (f). It is correct that the goods are not marketed, but they have been used captively for their own consumption. The duty has already been paid and the payment is correct.

On the question of limitation Shri Pattekar has argued that under held Section 35, there was no discretion that the Appellate Collector of Central Excise should condone the delay and hence his older rejecting the appeal as time-barred is correct.

3. Learned Advocate Shri Dalai in reply to the departmental representative's argument has stated that the rejection of the appellant's request would lead to discrimination as the Appellate Collector had allowed one appeal as mentioned above. He has also repeated the submission about applicability of the Limitation Act in this case and has relied on another judgment of the Supreme Court A.I.R. 1982 S.C. page 199 to show that Limitation Act applies to Revenue Court. He has thus requested that the Collector of Central Excise (Appeals) be directed to dispose of their appeal on merits after condoning the delay as submitted by him.

4. We have examined the submissions of the appellants and the respondent. Shri Dalai for the appellants has argued that the Appellate Collector's order rejecting the appeal to him under old Section 35 as time-barred is not correct as the provisions of the Limitation Act, 1963 apply to the appeal and he should have conceded the appellant's request for extension of the period for presenting the appeal, as the appellants had put forward satisfactory reasons for the delay.

Scrutinising this submission, we find that Section 29 of the Limitation Act provides for exceptions to the time limits prescribed under the Limitation Act. As per Sub-section (2) of Section 29. the limitation periods under the Limitation Act do not apply to any suits, appeals or applications under special or local law. The Central Excises & Salt Act is a special law and under Section 35 a different time limit is applicable. There-'ore, in our view, this time limit is saved under Section 29 of the Limitation Act. In this behalf we rely on the Supreme Court's judgment in the case of the Commissioner of Sales Tax, Uttar Pradesh v. Parson Tools and Plants, Kanpur Therefore, the Advocate's reliance on the judgments at 38-1976 Sales Tax cases 543 and are of no avail to him. As regards the Advocate's submission ;hat the Tribunal is a Court and therefore it is bound to take notice of the periods of limitation under the Limitation Act vide , we find that the argument of the learned Advocate is negatived by the Supreme Court's decision in the case of Nltvamwd M. JosM v. the Lift Insurance Corporation of India , in which it has been held that the Asstt. Collector of Customs is not a Court within the Indian Limitation Act. We also have a decision of the Madras High Court in the case of R.M, Seshadri v. Second Additional Income Tax Officer, Madras, which lays down that the Income Tax Appellate Tribunal is not a court. In view of these pronouncements, we believe that the judgment of the Bombay High Court relied upon by the learned Advocate will not apply in the present case.

As regards the judgment of the Bombay High Court in the case of M/s Hellenic Lines Ltd., and Anr. v. the Union of India, we find that this is a judgment on the interpretation of time limit under the then Section 128 of the Customs Act. There is a distinction between the old Section 128 of the Customs Act, and the old Section 35 of the Central Excises & Salt Act, 1944, as under the former Act provision was included for extending the time limit for presentation of the appeal, while there was no such provision under the latter act. Therefore, in our view the judgment of the Bombay High Court is of no avail to the appellants. In this connection we also refer to the Supreme Court's judgment in the case of M/s Madras Rubber Factory Ltd. v. Union of India andotlur in which the Honourable Supreme Court held that the petitioner's claim were rightly rejected under the bar of limitation under Section 27 of the Customs Act. We feel this judgment would be applicable by analogy to the appeal under consideration. In the above analysis we find that the order of the Appellate Collector of Central Excise, Bombay is correct in law. The same is confirmed and the appeal of The Municipal Corporation of Greater Bombay is rejected.


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