# M/S Kumar Construction v. Commissioner of Central Excise (Appeals), CGST Bhawan , Noida

- **Citation:** (2024) 5 ILRA 1904
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-25
- **Case number:** Writ Tax No. 1368 of 2023
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kumar-construction-v-commissioner-of-central-excise-appeals-cgst-bhawan-51906
- **Pages:** 4

## Headnote

Finance Act, 1994- Section 85-Appellate
order impugned-Appeal dismissed that the same
was time barred-filed beyond the period of 85
days-power of sec 5 of Limitation Act will be
available only if extended to special statuteFinance Act is a self-contained code by itself-with
inbuilt
mechanism-impliedly
excluded
the
application of the Limitation Act.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

1904 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The Commissioner, State Tax,
U.P. is directed to take note of this fact and
ensure that in future proper assistance is
provided to the counsel appearing on
behalf of the State/respondents. Registrar
Compliance is directed to communicate
this order to the Commissioner, State Tax,
U.P. forthwith.
----------
(2024) 5 ILRA 1904
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 1368 of 2023

M/S Kumar Construction ...Petitioner
Versus
Commissioner of Central Excise (Appeals),
CGST Bhawan , Noida ...Respondents

Counsel for the Petitioner:
Sri Rajneesh Shukla, Ms. Riya Soni

Counsel for the Respondents:
Sri Parv Agarwal

Finance Act, 1994- Section 85-Appellate
order impugned-Appeal dismissed that the same
was time barred-filed beyond the period of 85
days-power of sec 5 of Limitation Act will be
available only if extended to special statuteFinance Act is a self-contained code by itself-with
inbuilt
mechanism-impliedly
excluded
the
application of the Limitation Act.

W.P. dismissed. (E-9)

List of Cases cited:

1. Jai Hind Bottling Company (P) Ltd. Vs
Commissioner
(Appeals)
Central
Excise,
Allahabad 2002(146) ELT 273 (All.)

2. Pioneer Corporation Vs Union of India
2016(340) ELT 63 (Del)
3. Singh Enterprises Vs C.C.E., Jamshedpur
2008(221) ELT 163 (S.C.)

4. Commissioner of Customs and Central Excise
Vs Hongo India Private Limited & anr. (2009) 5
SCC 791

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. Heard Ms. Riya Soni, learned
counsel appearing on behalf of the petitioner
and Mr. Parv Agarwal, learned counsel
appearing on behalf of the respondents.

2. This is a writ petition under Article
226 of the Constitution of India wherein the
writ petitioner is aggrieved by the order
dated September 20, 2023 passed by the
appellate authority that is the Commissioner
of Central Excise (Appeals), Noida under
Section 85 of the Finance Act, 1994
(hereinafter referred to as the 'Finance
Act').

3. By the aforesaid order, the appellate
authority had dismissed the appeal filed by
the petitioner on the ground that the same
was time barred as it was filed beyond the
period of 85 days. In paragraphs 6.1 to 6.7
of the aforesaid order, the appellate
authority has clearly pointed out that the
petitioner has received the order in original
on January 17, 2023 whereas the appeal was
filed on June 9, 2023, that is, after a delay of
85 days beyond the limitation prescribed
under the Act.

4. Upon a perusal of the memo of
appeal filed by the petitioner, it is clear that
the order was communicated on January 17,
2023, as admitted by the petitioner itself.
The petitioner has explained the delay
stating that the delay was caused due to the
ignorance of authorised representative/legal
counsel and also because the petitioner
suffered with medical emergency caused by
5 All. M/S Kumar Construction Vs. Commissioner of Central Excise (Appeals), CGST Bhawan,
 Noida
1905
acute viral hepatitis between the period
April 10, 2023 to May 31, 2023. In addition
to the above explanation, the petitioner has
relied on several judgments of the High
Courts including a judgment of this Court in
Jai Hind Bottling Company (P) Ltd. vs.
Commissioner (Appeals) Central Excise,
Allahabad reported in 2002(146) ELT 273
(All.) and submitted that in extra ordinary
circumstances, the writ court has the power
to condone the delay. The petitioner has also
relied upon a judgment of the Delhi High
Court in Pioneer Corporation v. Union of
India reported in 2016(340) ELT 63 (Del)
to argue that in exceptional circumstances
and in the rarest of rare cases, the writ court
has the power to condone the delay.

5. However, as pointed out in the
appellate order, which is under challenge
before this Court, the Hon'ble Supreme
Court in several judgments including the
judgment in Singh Enterprises vs. C.C.E.,
Jamshedpur reported in 2008(221) ELT
163 (S.C.) has held that under Section 35 of
the Central Excise Act, the delay cannot be
condoned beyond what is prescribed under
the Central Excise Act as the language of the
said section specifically provides for
condonation of delay of additional 30 days
only. Section 85 of the Act is in pari materia
with the above section. One may examine
the Supreme Court judgment in Singh
Enterprises' (supra) wherein the Supreme
Court held as follows:-

"8. The Commissioner of Central
Excise (Appeals) as also the Tribunal being
creatures of statute are not vested with
jurisdiction to condone the delay beyond the
permissible period provided under the
statute. The period up to which the prayer
for condonation can be accepted is
statutorily provided. It was submitted that
the logic of Section 5 of the Limitation Act,
1963 (in short ?the Limitation Act?) can be
availed for condonation of delay. The first
proviso to Section 35 makes the position
clear that the appeal has to be preferred
within three months from the date of
communication to him of the decision or
order. However, if the Commissioner is
satisfied that the appellant was prevented by
sufficient cause from presenting the appeal
within the aforesaid period of 60 days, he
can allow it to be presented within a further
period of 30 days. In other words, this
clearly shows that the appeal has to be filed
within 60 days but in terms of the proviso
further 30 days' time can be granted by the
appellate authority to entertain the appeal.
The proviso to sub-section (1) of Section 35
makes the position crystal clear that the
appellate authority has no power to allow
the appeal to be presented beyond the period
of 30 days. The language used makes the
position clear that the legislature intended
the appellate authority to entertain the
appeal by condoning delay only up to 30
days after the expiry of 60 days which is the
normal period for preferring appeal.
Therefore, there is complete exclusion of
Section 5 of the Limitation Act. The
Commissioner and the High Court were
therefore justified in holding that there was
no power to condone the delay after the
expiry of 30 days' period."

6. Furthermore, in Commissioner of
Customs and Central Excise v. Hongo
India Private Limited and another
reported in (2009) 5 SCC 791, the Supreme
Court has held as under: -

"31. In this regard, it is useful to
refer to a recent decision of this Court in
Punjab Fibres Ltd.[(2008) 3 SCC 73] The
Commissioner of Customs, Central Excise,
Noida was the appellant in this case. While
considering the very same question, namely,
1906 INDIAN LAW REPORTS ALLAHABAD SERIES
whether the High Court has power to
condone the delay in presentation of the
reference under Section 35-H(1) of the Act,
the two-Judge Bench taking note of the said
provision and the other related provisions
followingSingh Enterprises v. CCE [(2008)
3 SCC 70] concluded that: (Punjab Fibres
Ltd. case [(2008) 3 SCC 73] , SCC p. 75,
para 8)

"8. ... the High Court was justified
in holding that there was no power for
condonation of delay in filing reference
application.?

32. As pointed out earlier, the
language used in Sections 35, 35-B, 35-EE,
35-G and 35-H makes the position clear that
an appeal and reference to the High Court
should be made within 180 days only from
the date of communication of the decision or
order. In other words, the language used in
other provisions makes the position clear
that the legislature intended the appellate
authority to entertain the appeal by
condoning the delay only up to 30 days after
expiry of 60 days which is the preliminary
limitation period for preferring an appeal.
In the absence of any clause condoning the
delay by showing sufficient cause after the
prescribed
period,
there
is
complete
exclusion of Section 5 of the Limitation Act.
The High Court was, therefore, justified in
holding that there was no power to condone
the delay after expiry of the prescribed
period of 180 days."

7. The Finance Act, 1994 is a special
statute and a self-contained code by itself
having an inbuilt mechanism wherein it has
impliedly excluded the application of the
Limitation Act, 1963 (hereinafter referred to
as the 'Limitation Act').

8. It is a trite law that the power of
Section 5 of the Limitation Act will be
available only if it is extended to a special
statute.
The
adjudication
of
matters
involving statutory timelines often raises
questions regarding the interplay between
general statutes such as the Limitation Act
and special statutes with their own
prescribed limitations.

9. Special statutes such as the Finance
Act, 1994, or the Central Excise Act are
enacted to address specific areas of law
comprehensively. These
statutes
often
contain
detailed
provisions
governing
procedural aspects, including timelines for
initiating legal proceedings, such as appeals.
Courts have consistently held that when a
special
statute
contains
provisions
governing limitation periods, it impliedly
excludes the application of general statutes
such as the Limitation Act. The rationale
underlying this principle is rooted in the
notion that the legislature, in enacting a
special statute, intends to provide a
comprehensive and exhaustive regime
governing all aspects of the relevant legal
domain.

10. The principle of statutory
interpretation embodies a fundamental tenet
of legal reasoning: fidelity to legislative
intent. In the context of limitation under
special statutes, this principle assumes
paramount importance, guiding courts in
their adjudicative function. While the court
retains discretionary authority in certain
matters, the primacy accorded to limitation
under special statutes operates as a
circumscribing principle delineating the
boundaries within which judicial discretion
may be exercised.

11. The jurisprudential foundation
supporting the primacy of limitation under
special statutes over general statutes is
multifaceted. Firstly, it recognizes the
legislature's intent to create a cohesive and
5 All. Soni Vs. State of U.P. & Anr.
1907
self-sufficient legal framework tailored to
the specific nuances of the relevant legal
domain. By providing detailed provisions
governing limitation period, the legislature
ensures certainty and predictability in legal
proceedings, thereby promoting efficiency
and expeditious resolution of disputes.
Moreover, the exclusion of general statutes
like the Limitation Act from the purview of
special statutes serves to maintain the
integrity and coherence of the legislative
scheme, preventing potential conflicts and
inconsistencies in statutory interpretation.

12. In light of the above, no
interference is warranted with the impugned
order. Accordingly, this writ petition is
dismissed.
----------
(2024) 5 ILRA 1907
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Cancellation Application No.
13 of 2024

Soni ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sumit Kumar Srivastava

Counsel for the Opposite Parties:
G.A., Murli Manohar Srivastava

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164 & 439(2) - Indian
Penal Code, 1860 - Sections 143, 147, 148,
307, 326, 447 & 506 - Bail cancellation
Application - for cancellation of anticipatory Bail
- FIR - allegations are against those ten accused
persons whom have took possession of the land
of informant's father forcibly and they poured
petrol on her father and set him ablaze - while
granting anticipatory bail, this court took into
consideration that, - there was a property dispute
between the parties - there is no eye witness of
the incident - the dispute of land having already
been settled in favour of the accused persons, -
prima facie there appears to be no motive for
them to cause the incident - grounds of
cancellation of bail is that, - material facts is
concealed by the opposite party no. 2 which was
not brought to the notice of the court, - opposite
party no. 2 has already been arrested before bail
order - court finds that - (i) it appears that it is
the informant herself who has set the criminal
law in motion by not only concealing the relevant
fact that the possession of the land in dispute had
been handed over to the opposite party no. 2 by
adopting due process of law by the revenue
authorities but she making false St.ment and
(ii) opposite party no. 2 had not concealed the
fact of his arrest in his Anticipatory bail
application as he had been not arrested till
filing of the said bail application - therefore,
the allegation of concealment of fact is not
correct either against the applicant or against
the learned counsel - held, order of granting
anticipatory bail has been passed after taking
into consideration of all the relevant facts and
circumstances of the case - hence, application
for cancellation of bail; order is hereby
dismissed. (Para - 25, 26, 27, 30)

Bail Cancellation Application Dismissed. (E11)

List of Cases cited:

1. Kusha Duruka Vs The St. of Odisha - (2024) 4 SCC
432,

2. Dalip Singh Vs St. of U.P. (2010) 2 SCC 114,

3. Moti Lal Songara Vs Prem Prakash @ Pappu &
anr.: (2013) 9 SCC 199,

4. Sushila Aggarwal & ors. Vs St. (NCT of Delhi) &
anr.: (2020) 5 SCC 1,

5. Gurbaksh Singh Sibbia Vs St. of Punj., (1980) 2
SCC 565,

6. Dalip Singh Vs St. of U.P., (2010) 2 SCC 114,