SUPREME COURT OF INDIA vide Civil Appeal No.1939 of 2009 with C.A.Nos. 1840-1941 of 2009, which was decided on 27/03/2009 in re: CCEX vs HONGO INDIA (P) LTD. held that we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent, the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H (1) to make a reference to High Court is absolute and unextendable  by Court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the Court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act.

In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the reference application filed by the Commissioner under unamended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation.

[for full text of the judgement pl. visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_1939]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS CENTRAL EXCISE ACT, DELAY IN FILING, POWER TO CONDONE

SUPREME COURT OF INDIA while deciding Civil Appeal No.D 23763 of 2008 in re: CCEX THANE II vs DAISY TRADING CORPN. observed as follows:-
QUOTE:
The application for rectification was preferred by the Revenue on the ground that in the light of the order dt. 23/08/1991 passed by the CCEX holding that the subject goods namely canvas cloth and tarpaulin cloth fall for classification under Ch. heading 5207 of Schedule 2 to CETA 1985 a mistake apparent from the record had crept in the order of the Tribunal requiring rectification rejecting the application the Tribunal has come to the conclusion that the stated ground cannot be said to be a mistake apparent from the record falling within the ambit of Sec.35 (C)(2) of the Act in as much as the subject goods falling under both the headings 5207 and 5208 are not leviable Basic Excise duty as the levy of such duty is exempt and the said goods are leviable only to additional duty of excise for which confiscation is not permissible.

Be that as it may apart from the facts that the scope of Sec.35(c)(2) of the Act is very limited the finding of the Tribunal that there is no mistake apparent from the record in its order dt. 23/07/2007 is a pure question of fact giving rise to no question of law requiring consideration by this Court. The Civil appeal is dismissed accordingly.
UNQUOTE

[for full text of the judgement pl. visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_D23763]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS Apparent from record, Mistake, Rectification, Supreme Court

SUPREME COURT OF INDIA while deciding on 06/03/2009 the Criminal appeal No.447 of 2009 in re: INSPECTOR OF CUSTOMS, AKHNOOR J & K vs YASH PAL observed as follows:-
QUOTE:
The word “shall” in clause (b) to Section 313(1) of the Code s to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relievehim of such hardship and at the same time adopt a measure to comply with the requirementsin Section 313 of the Code in a substantial manner. How could this be achieved?

The above position was indicated in BASAV RAJ R. PATIL vs STATE OF KARNATAKA [2000 (8) SCC 740] and KEYA MUKHERJEE vs MAGMA LEASING LTD and ors. [2008 (8) SCC 447].
UNQUOTE

[for full text of the judgement pl. visit website www. taxesinindia.com   and click on the citation: taxind_2009_sc_cra_447]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS