This division bench of S. Manikumar and
D. Krishnakumar, JJ held that there can be no order for condonation of
delay beyond the extended period of limitation, stating that when the
legislative intent is indicated by the provisions of special laws that
exclude the provisions of the Limitation Act, then authorities under
such statutes cannot exercise power to condone the delay. The Court
dismissed the writ appeal filed by the Appellant under Section 85 of the
Finance Act, 1994 against the refusal of condonation of a delay of 223
days in proceedings before the Commissioner of Service Tax (Appeals).
The Court noticed that Section 85 of the
Finance Act) provides that appeal be filed 3 months from date of
communication of order, while the Commissioner (Appeals) is empowered to
condone delays of a further three months if satisfied of sufficient
cause. The Court noted that Section 5 of the Limitation Act, 1963 which
permits the Court to exercise its discretion in condonation of delay, as
also sections 4 to 24, were to apply insofar as they were not barred by
local or special law. The Court held section 85 of the Finance Act as
analogous to limitation restrictions per Section 128 of the Customs Act,
1962; Section 34(3) of the Arbitration and Conciliation Act, 1996;
Section 125 of the Electricity Act, 2003; Section 35-G of the Central
Excise Act, 1944, constituting self-contained Acts and codes and that
the High Court or the Supreme Court, as the case may be, cannot direct
the appellate authority to condone the delay, beyond the extended period
of limitation. Further, the Court, in consonance with the decision in Indian Coffee Worker’s Co-operative Society Ltd. v. Commissioner of Commercial Taxes 2002
(I) CTC 406, stated that the power of the High Court under Article 226
of the Constitution did not extend to directing the Appellate Authority
to consider appeal on merits, even if the High Court were to accept
reasons given by the assessee for not filing appeal in the time
prescribed under the Act as that would be an extension of limitation and
the exercise of jurisdiction under Article 226 did not extend to
re-writing the provisions of the Act. [R. Gowrishankar v. Commissioner
of Service Tax (Appeal)- I., 2016 SCC OnLine Mad 6023, decided on 13-06-2016]
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