Badar Durrez Ahmed, J.
1. The petitioner is engaged in the manufacture of Pan Masala (Gutkha). Earlier, the petitioner was classyfying this product under subheading No. 2404.49 of the Schedule to the Central Excise Tariff Act, 1985 and was paying 16% basic excise duty and 24% special excise duty on the basis of an approved classification list. Subsequently, the petitioner, on receipt of a letter dated 31.10.2000, from the Central Excise Department, filed a fresh classification list and started clearing the aforesaid goods by classifying the same under heading No. 24.04 and paid Central excise duty accordingly, A show cause notice dated 27.11.2001 was issued to the petitioner contending that in respect of the period prior to 28.02.2001, the said goods were classifiable under heading 2106.00 and that the petitioner was liable to pay duty for the period up to 28.02.2001. The petitioner filed a reply to the said show cause notice and after considering such reply, the Deputy Commissioner of Central Excise passed an order-in-original No. 61/02 dated 17.05.2002 confirming the duty demanded.
2. This is the background leading to the main issue involved in this writ petition. The issue arises in respect of the appeal filed by the petitioner against the said order-in-original dated 17.05.2002 which was filed on 28.07.2002. Section 35 of the Central Excise Act, 1944 (hereinafter referred to as 'the said Act') provides for appeals to the Commissioner (Appeals) and reads as under:-
' 35. APPEALS TO COMMISSIONER (APPEALS).
(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within 'within sixty days' from the date of the communication to him of such decision or order:
Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.
(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.' Section 35(1) prescribes that the appeal must, in the first instance, be filed within sixty days from the date of the communication of the decision or order which is the subject matter of the appeal. The proviso to Section 35(1) enables the Commissioner (Appeals) to permit the filing of the appeal beyond the sixty days referred to above provided that he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the sixty days prescribed. However, on a plain reading of the proviso, it does appear that the Commissioner (Appeals) can exercise such power only within a 'further period of thirty days'. In other words, the appeal can be filed only up to 90 days from the date of communication of the decision or order appealed from. The first sixty days being the initial period and the further thirty days being at the discretion of the Commissioner (Appeals).
3. It is an admitted position that the appeal that was filed before the Commissioner (Appeals) on 27.08.2002 was filed after 94 days of receipt of the order-in-original. The Commissioner (Appeals) rejected the condensation of delay application of the petitioner as well as the appeal. According to the Commissioner (Appeals), the appeal had been filed beyond time and the delay could not be condoned by him as he had no power to condone the delay beyond the period of 30 days. Thus, even if he condoned the delay for the entire thirty days, the appeal would still be beyond time by four (4) days.
4. Being aggrieved by this, the petitioner preferred an appeal before the Central Excise and Gold (Control) Appellate Tribunal, New Delhi. The appeal was disposed of by the Tribunal by its final order No. 406/2003-B dated 05.06.2003, whereby it held that:-
'As per the provisions of Section 35 of the Central Excise Act at the relevant time, the Commissioner can condone the delay of 30 days for not filing the appeal within the prescribed limit under Section 35 of the Central Excise Act.'
Following its decision in the case of Abhishek Auto v. C.C. Mumbai 2003 (50) RLT 405, the Tribunal rejected the appeal of the petitioner.
5. It is the contention of the petitioner that the Commissioner (Appeals) had the power to condone delay even beyond the period of thirty (30) days permitted by the proviso to Section 35(1) of the said Act. This submission is made on the premise that the delay could be condoned under Section 5 of the Limitation Act, 1963 read with Section 29(2) thereof. To appreciate this submission it would be necessary to refer to the said provisions. Section 29(2) of the Limitation Act, 1963 reads as under:-
'(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.'
And, Section 5 of the Limitation Act, 1963 is as follows:-
'5. EXTENSION OF PRESCRIBED PERIOD IN CERTAINCASES.
Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanationn - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in as-curtaining or computing the prescribed period may be sufficient cause within the meaning of this section.'
The learned counsel for the petitioner argued that there is no denying that the Central Excise Act, 1944 is a special law and it prescribes its own period of limitation for preferring an appeal before the Commissioner (Appeals) and, thereforee, Section 29(2) of the Limitation Act, 1963 and consequently Section 5 thereof would come into play. The counter argument is that the provisions contained, in Sections 4 to 24 (inclusive) of the Limitation Act, 1963 apply only in so far as, and to the extent to which, they are not expressly excluded by the special law. The proviso to Section 35(1) prescribes the very period during which the delay can be condoned. It has not been left open-ended and thus there is an express exclusion to the applicability of Section 5 of the Limitation Act, 1963 beyond this period. Moreover, it is also to be noted that the provisions of the said Section 5 are applicable to 'courts' and the Commissioner (Appeals) cannot be regarded as a 'court'.
6. It is in this context that we require to consider the question as to whether the delay in filing an appeal can be condoned by the Commissioner (Appeals) when the delay is beyond the period of 30 days which is specified in Section 35 of the Central Excise Act, 1944? The related question is whether Section 5 of the Limitation Act, 1963 (hereinafter referred to as the 'Limitation Act') can be invoked for the purposes of considering a condensation of delay application by the Commissioner (Appeals) in respect of an appeal filed under Section 35 of the Central Excise Act, 1944?
7. These issues are no longer rest integra inasmuch as the same arose for consideration in the case of M/s. Delta Impex v. Commissioner Customs, CUS AC. No. 9/2003 which was decided by a Division Bench of this Court on 13.02.2004. In the said case, the parallel provision of Section 128 of the Customs Act, 1962 came up for consideration. Several decisions of the Supreme Court were discussed. Those included - Collector of C.E. Chandigarh v. Doaba Cooperative Sugar Mills : 1988(37)ELT478(SC) ; Mills India Limited v. Assistant Collector of Customs, 1987 (30) ELT 641 (SC); Mohd Ashfaq v. State Transport Appellate Tribunal : [1977]1SCR563 ; Commissioner of Sales Tax v. Parson Tools & Plant, 35 STC 413; Smt Ujjam Bai v. State of U.P. : [1963]1SCR778 ; Jagannath Prasad v. State of U.P. : [1963]2SCR850 . Apart from holding that 'taxing authorities are not 'courts' and thereforee, Section 5 of the Limitation Act, 1963 cannot be invoked', this court, in Delta Impex (supra), specifically held in paragraphs 12, 13 & 14 thereof as under:-
'12. The Customs Act, 1962 itself is a complete Code. Reading various chapters and various sections thereof, it is very clear that it is an Act independent of other provisions. It provides for search, seizure, arrest, confiscation of goods, conveyance, imposition of penalties, settlement of cases, appeals including the appeal to the Supreme Court and hearing before the Supreme Court, period of limitation, offences and prosecution. Thus, it is an independent Act.
13. The Court is required to examine the scheme of the special law, and the nature of the remedy provided therein. Considering these aspects, the Court will have to find out whether the Legislature intended to provide a complete code by itself which alone should govern the matters provided by it. On examination of the relevant provisions, if it becomes clear that the provisions of Section 5 of the Limitation Act are necessarily excluded, then the said provisions cannot be called in aid to supplement the provisions of the Act. It is open to the Court to examine whether and to what extent the nature of the provisions contained in Limitation Act in comparison with the scheme of the special law are excluded from operation. When Section 128 of the Customs Act specifically provides the period of limitation and a further period of 30 days only during which the applicant was prevented by sufficient cause from presenting an appeal can be condoned, meaning thereby that the legislature has given a mandate that delay could be condoned only for the specified period, prescribed in the proviso to Section 128 of the Act, and not further.
14. In the instant case, a separate period of limitation is provided, as also the period for which delay can be condoned. The Legislature was aware about the provisions contained in Section 5 of the Limitation Act, yet with an intention to curb the delay in taxation matters, it has specially provided that after the statutory period, if there is delay of 30 days, on showing sufficient grounds for delay of 30 days, that can be condoned and no further. Thus, applicability of Section 5 of the Limitation Act is specifically excluded.'
8. The above observations and findings which relate to Section 128 of the Customs Act, 1962 apply with equal vigour to the provisions of Section 35 of the Central Excise Act. With reference to Section 128 of the Customs Act, 1962 which is in pari materia to Section 35 of the Central Excise Act, 1944, this Court held that for the purposes of filing an appeal 'a further period of 30 days can be extended and not further.' It also held that -- 'Thus, when the maximum time limit is specified or a condonable period is prescribed, then only the delay within the specified time of condensation which can be condoned, and no further'. Thus, we see that the issues which arise for consideration in the present writ petition are squarely covered by the decision of this Court in the case of Delta Impex (supra). However, the learned counsel for the petitioner, when presented with the views taken by us in the case of Delta Impex (supra), contended that we ought to keep in mind the decisions of the Supreme Court in the following cases:-
i) Lalji Haridas v. State of Maharashtra : 1964CriLJ249 ;
ii) Commissioner of Sales Tax, U.P. v. Madan Lal Das and Sons : [1977]1SCR683 ;
iii) Hukumdev Narain Yadav v. Lalit Narain Mishra : [1974]3SCR31 ;
iv) Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker : AIR1995SC2272 ; and
v) UOI v. Popular Construction Co. : AIR2001SC4010 .
9. Let us consider these cases one by one. In the case of Lalji Haridas (supra), the question which essentially came up for consideration was whether an Income-Tax Officer under the Income-Tax Act, 1922 was a 'court' within the meaning of clause (b) in Sub-section 1 of Section 195 of the Code of Criminal Procedure. The majority opinion of the Constitution Bench which was delivered by Gajendragadkar, CJ, held that the proceedings before the Income-Tax Officer would be regarded as proceedings in any court for the purposes of Section 195(a)(b) of the Criminal Procedure Code. The minority view expressed by Das Gupta, J, was that the Income-Tax Officer could not be regarded as a 'court'. This case was cited for the purpose that the Commissioner (Appeals) could also be regarded as a 'court' and thereforee the provisions of Section 5 of the Limitation Act, 1963 would apply. But, before Section 5 is at all applicable, the hurdle presented by Section 29(2) of the Limitation Act, 1963 has to be crossed. We have seen that Sections 4 to 24 (inclusive) of the Limitation Act, 1963 apply only in so far as, and to the extent to which, they are not expressly excluded by the special law. The proviso to Section 35(1) expressly provides for condensation of delay up to thirty (30) days and no further. Thus, if at all Section 5 of the Limitation Act, 1963 is to apply it is only within the period of thirty days and to that extent only. The decision of the of the Supreme Court in the case of Lalji Haridas (supra) does not in any way alter this conclusion and is of no use to the petitioner in the present petition.
10. In the case of Commissioner of Income-Tax (supra), the question that came up for determination was, whether the time taken by the dealer in obtaining another copy of the impugned appellate order could be used for the purpose of limitation for filing a revision under Section 10 (1) of the U.P. Sales-Tax Act when one copy of the appellate order was served upon the dealer under the provisions of the Act. It was the contention of the assessed that under Section 12(2) of the Limitation Act, he was entitled to exclude, in computing the period of limitation for filing the revision, the time spent for obtaining a copy of the appellate order. The High Court in that case had accepted the contention of the assessed and placed reliance upon the provisions of Section 12(2) of the Limitation Act. Before the Supreme Court, it was contended on behalf of the Revenue that the U.P. Sales Tax Act constituting a complete code in itself and if the Act, had prescribed the period of limitation for filing of revision petition. The High Court was earlier not relying upon the provisions of Section 12(2) of the Limitation Act. This contention was rejected by the Supreme Court. After quoting Section 29(2) of the Limitation Act, the Supreme Court held as under:-
'4. There can be no matter of doubt that the U.P. Sales Tax Act answers to the description of a special or local law. According to Sub-section (2) of Section 29 of the Limitation Act, reproduced above, for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in Section 12(2), inter alia, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. There is nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2) of the Limitation Act for determining the period of limitation prescribed for revision application. The conclusion would, thereforee, follow that the provisions of Section 12(2) of the Limitation Act of 1963 can be relied upon in computing the period of limitation prescribed for filing a revision petition under Section 10 of the U.P. Sales Tax Act.'
This decision also does not come to the aid of the petitioner. The Supreme Court permitted reliance upon Section 12(2) of the Limitation Act, 1963 because there was 'nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2)'. But, in the present case' we have held that application of Section 5 of the Limitation Act, 1963 is expressly excluded. This is so because in the special law, namely, the said Act (Central Excise Act, 1944), the period of limitation as well as the period during which delay can be condoned are specifically inbuilt in Section 35 itself. In such a situation, it is difficult to accept the contention that Section 5 of the Limitation Act will apply. When this section expressly provides not only the limitation period but also the period during which a condensation of delay application may be entertained, it becomes clear from the scheme of this special law that the operation of provisions of Section 5 of the Limitation Act, 1963 are excluded.
11. In the case of Hukumdev Narain Yadav (supra), the Supreme Court was, inter alia, examining the question as to whether, by virtue of Section 29(2) of the Limitation Act, the provisions of Section 4 to 24 of the said Act would be applicable to the filing of election petitions? The Supreme Court held that the provisions of Section 5 of the Limitation Act (which are included in Sections 4 to 24 of the said Act) does not govern the filing of elections petitions or their trial. While holding so, the Supreme Court observed as under in paras 17 & 18 of the said decision:-
'17. Though Section 29(2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where Section 29(2) has been made applicable to an election petition filed under Section 81 of the Act by virtue of which either Sections 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this Section are expressly excluded in the case of an election petition. It is contended before us that the words 'expressly excluded' would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and 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 view, 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. The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, 82 or 117. It will be seen that Section 81 is not the only Section mentioned in Section 86, and if the Limitation Act were to apply to an election petition under Section 81 it should equally apply to Section 82 and 117 because under Section 86 the. High Court cannot say that by an application of Section 5 of the Limitation Act, Section 81 is complied with while no such benefit is available in dismissing an application for non-compliance with the provisions of Sections 82 and 117 of the Act, or alternatively if the provisions of the Limitation Act do not apply to Section 82 and Section 117 of the Act, it cannot be said that they apply to Section 81. Again Section 6 of the Limitation Act which provides for the extension of the period of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to an election petition. Similarly, Sections 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial. 18. It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what Section 29(2) of the Limitation Act says, because it provides that Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. Whether those Sections are applicable is not determined by the terms of those Sections, but by their applicability or inapplicability to the proceedings under the special or local law. A person who is a minor or is insane or is an idiot cannot file an election petition to challenge an election, nor is there any provision in the Act for legal representation of an election petitioner or respondent in that petition who dies, in order to make Section 16 of the Limitation Act applicable. The applicability of these provisions has, thereforee, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act.'
We fail to see how this decision of the Supreme Court advances the cause of the petitioner. On the contrary, it entirely supports the view we have taken. On an examination of the provisions of Section 35 of the said Act, it is clear that the provisions of the Limitation Act are necessarily exeluded, at least beyond the said thirty (30) day period. As such the benefits conferred in the Limitation Act, 1963 cannot be called in aid to supplement the provisions of the said Act. The Supreme Court has made it clear 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. Having examined the provisions of Section 35 of the said Act we have come to the conclusion that operation of Section 5 of the Limitation Act, 1963 is excluded to the extent indicated above.
12. In the case of Mukri Gopalan (supra), the short question before the Supreme Court was 'whether the appellate authority constituted under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 had the power to condone the delay in the filing of an appeal before it under the said section?' The relevant Section 18 under consideration in that case was as under:-
'18. Appeal --(1) (a) The Government may, by general or special order notified in the Gazette, confer on such officers and authorities not below the rank of a Subordinate Judge the powers of appellate authorities for the purposes of this Act in such areas or in such classes of cases as may be specified in the order.
(b) Any person aggrieved by an order passed by the Rent Control Court may, within thirty days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the thirty days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded.
(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal.
(3) The appellate authority shall send for the records of the case from the Rent Control Court and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either directly or through the Rent Control Court, shall decide the appeal.
Explanation - The appellate authority may, while confirming the order of eviction passed by the Rent Control Court, grant an extension of time to the tenant for putting the landlord in possession of the building.
(4) The appellate authority shall have all the powers of the Rent Control Court including the fixing of arrears of rent.
(5) The decision of the appellate authority, and subject to such decision, an order of the Rent Control Court shall be final and shall not be liable to be called in question in any court of law, except as provided in Section 20.'
The Supreme Court, in paragraph 22 of the said judgment, held as under:-
'22. As a result of the aforesaid discussion it must be held that appellate authority constituted under Section 18 of the Kerala Rent Act, 1965 functions as a court and the period of limitation prescribed therein under Section 18 governing appeals by aggrieved parties will be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963. Such proceedings will attract Section 29(2) of the Limitation Act and consequently Section 5 of the Limitation Act would also be applicable to such proceedings. Appellate authority will have ample jurisdiction to consider the question whether delay in filing such appeals could be condoned on sufficient cause being made out by the applicant concerned for the delay in filing such appeals.'
In so coming to the conclusion, the Supreme Court, with regard to the provisions of Section 29(2) of the Limitation Act, observed as under:-
'A mere look at the aforesaid provision shows for its applicability to the facts of a given case and for importing the machinery of the provisions containing Sections 4 to 24 of the Limitation Act the following two requirements have to be satisfied by the authority invoking the said provision.
(i) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application.
(ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act.'
13. In the facts of that case, the Supreme Court held that there was no dispute that the Kerala Rent Act was a special Act or a local law. It was not disputed that it prescribes, for an appeal under Section 18, a period of limitation which is different from the period prescribed by the Schedule to the Limitation Act. The Court further observed that once the aforesaid two conditions were satisfied, Section 29(2) on its own force would get attracted to appeals filed before the appellate authority under Section 18 of the Limitation Act and that when Section 29(2) applied to appeals under Section 18 of the Limitation Act, for computing the period of limitation prescribed for appeals under that Section, all the provisions of Sections 4 to 24 of the Limitation Act would apply. Section 5 being one of them would, thereforee, also get attracted. The Supreme Court categorically observed as under:-
'It was obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before the appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of the Limitation Act can be said to have been satisfied.'
Clearly, Section 5 of the Limitation Act, 1963 was held to be applicable as there was no express exclusion in the Rent Act. But, this is not the case in the present writ petition. We have already indicated that there is an express exclusion in Section 35 of the said Act. We have also indicated the extent of the exclusion. The decision of the Supreme Court in Mukri Gopalan's case (supra) does not in any way come to the aid of the petitioner in the present case.
14. While considering an earlier decision of the Supreme Court in the case of CST v. Parson Tools and Plants : [1975]3SCR743 , the Supreme Court in the case of Mukri Gopalan (supra), observed in that case (Parson Tools) the scope of Section 29(2) was not considered and consequently it could not be held to be an authority for the proposition that in a revisional proceedings before the Sales Tax authority functioning under the U.P. Sales Tax Act, Section 29(2) could not apply. Explaining the decision in Parsons Tools's case (supra), the Supreme Court in the case of Mukri Gopalan (supra), held that the said decision (Parson Tools) was rendered because there was an express provision under Section 10 (3) B of the U.P. Sales Tax Act which provided that a revision application had to be made within one year from the date of service of order but that the revising authority could, on proof of sufficient cause, entertain an application within a further period of six months. In view of this provision, it was held that this was an express bar to the applicability of Section 14(2) of the Limitation Act. As regards the decision of the Supreme Court in CST v. Madan Lal Das & Sons (supra), the Court observed that it was a direct decision on the point that Section 29(2) of the Limitation Act, 1963 would be applicable for computing periods of limitation prescribed by a local or special law, even though the authority before which such proceeding may be filed under the local or special law may not be a full-fledged civil court. But, that comes into the picture only if there is no exclusion. The issue of whether the Commissioner (Appeals) is or is not a court is-not relevant in the present case or for that matter in any case where there is an express exclusion.
15. Finally, we consider the decision of the Supreme Court in the case of Union of India v. Popular Construction Company (supra). The question that was considered by the Supreme Court in that case was whether the provisions of Section 5 of the Limitation Act were applicable to an application challenging an award, under Section 34 of the Arbitration and Conciliation Act, 1996. While considering the question, the Supreme Court was of the view that the issue would have to be resolved with respect to the language used in Section 29(2) of the Limitation Act and Section 34 of the Arbitration and Conciliation Act, 1996. Analysing the provisions of Section 29(2) of the Limitation Act, the Court held that the provisions of Sections 4 to 24 of the Limitation Act would apply when:-
(i) there is a special or local law which prescribes a different period of limitation for any suit, appeal or application; and
(ii) the special or local law does not expressly exclude those sections.
Insofar as the first condition was concerned, there was no dispute that the Arbitration and Conciliation Act, 1996 was a 'special law' and that Section 34 thereof provided for the period of limitation different from that prescribed under the Limitation Act. The bone of contention before the Supreme Court in that case was whether there was any exclusion expressed in Section 34 of the Arbitration and Conciliation Act, 1996 with regard to the applicability of Sections 4 to 24 of the Limitation Act. It would be pertinent to set out Section 34 of the Arbitration and Conciliation Act, 1996 which reads as under:-
'34. Application for setting aside arbitral award.--
xxxx xxxx xxxx xxxx xxxx
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal:
Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. xxxx xxxx xxxx xxxx xxxx'
Analysing the aforesaid provision and in particular the proviso thereto, the Supreme Court, on the strength of its decision in Mangu Ram v. Municipal Corporation of Delhi, : 1976CriLJ179 (at page 396), observed that:-
'8. Had the proviso to Section 34 merely provided for a period within which the court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because 'mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5'.'
With regard to the words 'but not thereafter' used in the proviso, the Supreme Court held that these amounted to an express exclusion within the meaning of Section 29(2) of the Limitation Act and was, thereforee, a complete bar to the application of Section 5 of the Limitation Act. In this context, the Court observed as under:-
'Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result.'
The question that arises at this juncture is - what if the words 'but not thereafter' had not been used? Could the proviso still amount to an express exclusion as contemplated in Section 29(2) of the Limitation Act, 1963? From what is stated in above-quoted paragraph 8 of the decision in Union of India v. Popular Construction Co. (supra), it would appear that, bereft of the words 'but not thereafter', the proviso may not amount to an express exclusion of, inter alia, the provisions of Section 5 of the Limitation Act, 1963. But, a deeper examination, would show that such a conclusion would not be in order. The said observation in paragraph 8 of the decision in Union of India v. Popular Construction Co. (supra), is based on the case of Mangu Ram (supra). The issue in that case concerned the limitation for filing of an application under Section 417 of the Code of criminal procedure, 1898 before the High Court for special leave to appeal against an order of acquittal. The said Section 417 (so much as is relevant) is as under:-
'417. (1) xxxx xxxx xxxx xxxx
(2) xxxx xxxx xxxx xxxx
(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(4) No application under Sub-section (3) for the grant of special leave to appeal from the order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.
(5) xxxx xxxx xxxx xxxx'
The argument advanced was that the time limit of sixty days prescribed in Sub-section (4) of Section 417 for the making of an application for special leave under Sub-section (3) of that section was a mandatory and inexorable time limit which could not be relieved against or relaxed and it excluded the applicability of Section 5 of the Limitation Act, 1963. It was urged that having regard to the clear and specific language of Sub-section (4) of Section 417 which left no scope for doubt or ambiguity, the High Court was statutorily obliged to reject an application for special leave made after the expiry of sixty days from the date of the order of acquittal and it had no jurisdiction to extend this time limit of sixty days by resort to Section 5 of the Limitation Act, 1963. The Supreme Court, after distinguishing its earlier decision in the case of Kaushalya Rani v. Gopal Singh, : [1964]4SCR982 on the ground that the decision pertained to the Limitation Act, 1908 which was different from the Limitation Act, 1963, held that:-
'... the time limit of sixty days laid down in Sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of Sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, thereforee, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in Sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it.'
Section 417(4) of the Code of Criminal Procedure, 1898 is quite different from the proviso to Section 35(1) of the said Act. The former only prescribes a period of limitation, while the latter does not merely specify a period of limitation but, it goes further and also specifies the period during which a condensation of delay application can be filed. Thus, the observation of the Supreme Court in Mangu Ram (supra) and reiterated in Union of India v Popular Construction (supra) to the effect that 'mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5', does not come in the way of construing the proviso to Section 35(1) of the said Act as excluding the applicability of Section 5 of the Limitation Act, 1963. If one were to compare the provisions of Section 5 of the Limitation Act, 1963 and the proviso to Section 35(1) of the said Act, one would find that they are essentially the same in that they both permit the presentation of an appeal beyond the limitation period if the appellant is able to satisfy the appellate authority that the appellant was prevented by sufficient cause from presenting the appeal within the prescribed period of limitation. The difference in the two provisions lies in the fact that while Section 5 of the Limitation Act, 1963 is 'open-ended', the proviso to Section 35(1) also stipulates that such appeal which is beyond time can only be presented within a further period of thirty days and not thereafter. By prescribing the maximum period during which an appeal may be presented beyond the limitation prescribed, the legislative intent is clear that the 'open-ended' provision of Section 5 of the Limitation Act, 1963 was not to apply. To this extent, there is an express exclusion of the provisions of Section 5 of the Limitation Act, 1963.
16. We are further supported by the view taken by the Supreme Court in its recent decision in the case of India House v. Kishan N. Lal-wani : [2002]SUPP5SCR522 wherein similar provisions of Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 came to be considered. Sub-section (2) of Section 25 of the said Tamil Nadu Act provides that every application to the High Court for the exercise of its revisional power shall be preferred within one month from the date on which the impugned order is communicated to the applicant
'provided that the High Court may, in its discretion, allow further time not exceeding one month for the filing of any such application, if it is satisfied that the applicant had sufficient cause for not preferring the application within the time specified'
With regard to the applicability of Section 5 of the Limitation Act, 1963, in the wake of the aforesaid proviso to Section 25(2) of the said Tamil Nadu Act, the Supreme Court held as under:-
'11. So far as the applicability of Section 5 of the Limitation Act is concerned, the power of the court to extend the prescribed period of limitation on the ground of availability of sufficient cause for not preferring the appeal within the prescribed period, within the meaning of Section 5 of the Limitation Act, stands circumscribed by the limitation imposed on the power of the High Court by the proviso to Sub-section (2) of Section 25 of the Act. The discretionary power to condone the delay in filing the revision can be exercised for condoning any delay which does not exceed one month over and above the period liable to be excluded from computing the period of limitation by reference to Sections 4 to 24 of the Limitation Act.'
Clearly, the Supreme Court held that delay could be condoned only to the extent of the condonable period prescribed by the proviso to Section 25(2) of the said Tamil Nadu Act.
17. In view of the foregoing discussion, we find that there is no distinction between the present case and that of Delta Impex (supra). The Tribunal was correct in upholding the decision of the Commissioner (Appeals) that the Commissioner (Appeals) had no power to condone the delay beyond the further period of 30 days from the expiry of the time within which the appeal ought to have been filed. The Central Excise Act, 1944 is a complete code and the provisions of Section 35 clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to entertain any application for condensation of delay or to entertain the appeal itself.
18. In these circumstances, we find that the orders passed by the Commissioner (Appeals) as well as the Tribunal are unassailable in law. Accordingly, the writ petition is dismissed.