The Commissioner of Central Excise Vs. Shruti Colorants Ltd. - Court Judgment

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excise - limitation - condonation of delay - expiry of limitation period - inherent power of high court - section 35 g of central excise act, 1944 - appellant-department filed appeal against order of tribunal imposing penalty - appeal dismissed and confirmed order of commissioner of appeals reversing penalty imposed on assessee - appellant-department also filed notice of motion for condonation of delay as the appeals were filed after the expiry of limitation period - hence, the present appeals - whether under the provisions of section 35g of the act, the high court while entertaining an appeal has the power to condone the delay - held, in absence of statutory provision, no inherent powers of the court exist to condone the delay - unambiguous language of section 35g fixes the period of limitation within a self-contained code and does not provide for condonation of delay by the high court - appeals dismissed limitation - condonation of delay - expiry of limitation period - applicability of - section 5 of limitation act, 1963 - appellant-department contended that condonation of delay to present appeals was possible by virtue of applicability of section 5 of limitation act as there was no express provision in excise act to exclude provisions of limitation act - hence, the present appeals - whether section 5 of limitation act was applicable to present case - held, it is not essential for the special or local law, in terms, to exclude the provisions of the limitation act - it is sufficient that if on a consideration of the language of its provision relating to limitation, the intention to exclude can necessarily be implied - in the present case, in no uncertain terms excise act commands the institution of the appeal within a period of 180 days - such exclusion of the provisions of the limitation act is, thus, implicit by necessary implication - limitation act is a piece of adjective or procedural law and not of substantive law - rules of procedure whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication - it would, therefore, not be correct to apply any of the provisions of limitation act to matters which do not strictly fall within the purview of those provisions - appeals dismissed - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - during the year 20012002, assessee had also undertaken the job work by using their own inputs like tcb and they were raising cenvat credit for manufacture of cpc blue crude tcb. 5. before we proceed to deliberate on the legal issues arising in the present case, it is necessary to note that section 35g of the act as well as section 130 of the income tax act, 1962, came to be repealed by the national tax tribunal act, 2005 (49 of 2005) with effect from 28th december 2005. section 15 of the national tax tribunal act, 2005 (hereinafter referred to as the '2005 act'), provided for appeals from the orders passed by the appellate tribunal under both these acts. under section 15, an appeal would lie to the national tax tribunal that too where the tribunal is satisfied that the case involves a substantial question of law within the period of limitation specified under that provision. appeal to high court -(1) an appeal shall lie to the high court from every order passed in appeal by the appellate tribunal on or after the 1st day of july, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the high court is satisfied that the case involves a substantial question of law. (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) where the high court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. it is settled principle that in construing enactments such as those prescribing a period of limitation for institution of proceedings where the purpose is only to intimate the people that after lapse of a certain time from a certain event a proceeding will not be entertained and where a strict grammatical construction is normally the only safe guide. normally, strict grammatical construction of a limitation provision is the only safe guide was the view taken in the case of lucy v. henleys telegraph works (1969) 3 all er 456, as well as r. rule of limitation is intended to serve ends of justice by preventing continued litigation and requiring the aggrieved to act with expeditiousness and in any case within the prescribed period of limitation and to ensure that a succeeded party can enjoy fruits of the result of their litigation. but in construing such provisions equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. in the present cases, we are concerned with the language of section 35g of the central excise act, 1944. under sub-section (1) of section 35g, an appeal shall lie to the high court from every order passed in appeal by the appellate tribunal passed on/or before 1st july, 2003 but only where the high court is satisfied that the case involves a substantial question of law. mindful of the entire procedure to be followed by the high court while dealing with such appeals, the legislature has even gone to the extent of noticing a minute matters like giving powers to the high court to frame any other substantial question of law if it is so satisfied and which had not been framed in the memorandum of appeal. (supra), the supreme court has clearly enunciated the principles while relying upon its earlier judgments in the cases of singh enterprises v. but proviso to section 35g permits the appellate tribunal to allow the appeal even after the aforesaid limitation prescribed in clause 1 is expired if the tribunal is satisfied that there was sufficient cause for not filing the appeal within the prescribed time. 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. 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. laxman 2005(8) scc 769, the supreme court clearly stated that law of limitation is a statute of repose and not an equitable piece of legislation. the court then while considering the provisions of section 18(1), 18(2) and 18(3) of the land acquisition act, 1894 clearly held that condonation of delay in filing a reference or even in invoking the provisions of section 28a, would be impermissible and application under section 18(2) has to be made within the time fixed. 17. thus the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum timelimit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of section 14(2) o the limitation act. 18. we have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the lawgiver;swatanter kumar, c.j.1. by this common order, we will dispose of the above seven appeals preferred by the commissioner of central excise, pune under section 35g of the central excise act, 1944 (hereinafter referred to as 'the act'). all these appeals are barred by time. the appellant in all the present appeals have taken out notices of motion for condonation of delay varying from 3 days to 79 days in filing the present appeals. thus, it is not necessary for us to deal in greater detail with the facts of each case and for the purposes of brevity, we would be referring to the facts of central excise appeal (lodging) no. 114 of 2008 to answer the question of law in the present appeals.2. m/s shruti colorants limited, the assessee, are carrying on the business of manufacture of dye intermediate falling under csh 3204.19 of the first schedule to the central excise tariff act, 1985. the assessee was availing the facility of cenvat credit on inputs and capital goods used in or in relation to manufacture of their final products under rule 57a of the erstwhile rules of 1944. they were also undertaking job work of m/s shreyas intermediates limited and getting the raw material under rule 57f(4) challans for conversion and on processing, sending it back to the principal i.e. the said concern m/s shreyas intermediates ltd. on the same challans only. during the year 20012002, assessee had also undertaken the job work by using their own inputs like tcb and they were raising cenvat credit for manufacture of cpc blue crude tcb. according to the case put forth by the revenue, as per the provisions of rule 57c of the rules, no credit of the specified duty is allowed on such quantity on inputs which is used in manufacture of final products which are exempted from the whole of the duty of excise leviable thereon or are chargeable to nil rate of duty. in the case of the assessee, 2,26,350 kgs of cpc blue crude produced and cleared to the principal by using 18,108 kg of tcb by assessee has not been suffered any duty and therefore the credit of duty so raised on the above tcb and used in job work while producing cpc crude blue was not allowable under rule 57d(2) of the central excise rules, 1944. the revenue department issued a show cause cum demand notice bearing no. iii/iadshruti/ 16/scl(ea.2000)05 dated 8th july 2005 vide which the assessee was required to show cause why the duty demanded with interest and penalty be not recovered from the assessee. the assessee filed reply to the notice. the assistant commissioner of central excise, division ratnagiri, vide his order dated 24th january 2006 and after following prescribed procedure and in accordance with the principles of natural justice, confirmed the reversal of rs. 69,535/and also rs. 36,797/on account of interest and imposed a penalty equal to the amount i.e. rs. 69,535/under section 11ac. this order was assailed by the assessee before the commissioner (appeals), central excise, puneii, who vide his order dated 28th april 2006 partly allowed the appeal of the assessee by upholding the reversal of the credit with interest but waived the penalty. the revenue felt aggrieved from the order of the commissioner (appeals) in waiving the penalty, thus preferred an appeal before the customs excise and service tax appellate tribunal, west zone at mumbai. the appeal of the department was dismissed by the tribunal which held that, in view of the judgments in cce v. machino montel , and gaurav mencantiles ltd : 2005(190)elt11(bom) (bom), no interference was called for and dismissed the appeal.3. aggrieved from the order of the tribunal, the revenue has challenged the legality and propriety of this order in the present appeal. according to the appellant, question of law whether the tribunal had jurisdiction to waive penalty levied under section 11ac of the central excise act, 1944 arises for consideration in the present appeal.4. as already noticed, the present appeal was filed on 29th april 2008 and the appellant took out notice of motion no. 2028 of 2008 praying for condonation of 72 days of delay in filing the present appeal. in fact, there was not much opposition to this application and no reply has been filed. the principal question that arises for consideration in the present appeal and of which the court is expected to take suo motu note is whether, under the provisions of the act, the high court while entertaining an appeal under section 35g of the act at all has the power to condone the delay. as this matter goes to the very root of jurisdiction of the court, the sufficiency or otherwise of the delay in filing of the appeal loses much of its significance. admittedly, the order of the tribunal dated 30th july 2007 is stated to have been received by the department on 21st august 2007 and despite the fact that the draft appeal was received on 29th march 2008, still the appeal was filed on 29th april 2008. thus, the delay is hardly appropriately explained. as already noticed, the court is primarily concerned with the aspect relating to jurisdiction rather than sufficiency of cause for condonation of delay in these appeals. thus, we proceed to discuss this legal issue.5. before we proceed to deliberate on the legal issues arising in the present case, it is necessary to note that section 35g of the act as well as section 130 of the income tax act, 1962, came to be repealed by the national tax tribunal act, 2005 (49 of 2005) with effect from 28th december 2005. section 15 of the national tax tribunal act, 2005 (hereinafter referred to as the '2005 act'), provided for appeals from the orders passed by the appellate tribunal under both these acts. under section 15, an appeal would lie to the national tax tribunal that too where the tribunal is satisfied that the case involves a substantial question of law within the period of limitation specified under that provision. appeal from the order of the national tribunal would lie to the supreme court in terms of section 24 of the 2005 act. section 23 of the 2005 act further postulates that the cases pending before the high court on and from such date as the central government may by notification specify, all matters and proceedings including appeals and references under the direct taxes and indirect taxes pending before any high court immediately before that date shall stand transferred to the national tax tribunal on and from such date as the central government may notify. the high court then would transfer the records pertaining to such matters or proceedings to the national tax tribunal. it is commonly conceded before us that the central government has not issued any notification fixing the date as contemplated under section 23(1) of the 2005 act. it has also been brought to our notice that various provisions of the 2005 act were challenged before the supreme court being unconstitutional and ultra vires on various grounds and the said special leave petitions are pending for regular hearing before the supreme court of india and even certain interim orders were passed by the supreme court including the order dated 9th january 2007.6. it also needs to be noticed that the constitutional and validity of various provisions of the national tax tribunal act, 2005 were also challenged before this court in the case of p.c. joshi v. union of india : [2006]282itr39(bom) . this writ petition had been filed by an advocate who is a senior tax practitioner. the court while adjourning the matter for directions, passed the following interim order:.in the meanwhile, there will be an ad interim order restraining respondents nos. 1 to 3 from constituting the national tax tribunal and transferring the matters pending in this court to the said tribunal.7. it is obvious that as a result of the above interim order, no notification has been issued by the central government constituting the national tax tribunal or the notification contemplated under section 23(1) of the 2005 act. it is in this background that the provisions of section 35g of the act are still operative and appeals to this court are being filed under those provisions. therefore, we must refer to the provisions of section 35g for proper appreciation of legal principles. section 35g of the central excise act reads as under:section 35g. appeal to high court - (1) an appeal shall lie to the high court from every order passed in appeal by the appellate tribunal on or after the 1st day of july, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the high court is satisfied that the case involves a substantial question of law. (2) the commissioner of central excise or the other party aggrieved by any order passed by the appellate tribunal may file an appeal to the high court and such appeal under this sub-section shall be -(a) filed within one hundred and eighty days from the date on which the order appealed against is received by the commissioner of central excise or the other party;(b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party;(c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.(3) where the high court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.(4) the appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question;provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.(5) the high court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) the high court may determine any issue which (a) has not been determined by the appellate tribunal; or(b) has been wrongly determined by the appellate tribunal, by reason of a decision on such question of law as is referred to in sub-section (7) when an appeal has been filed before the high court, it shall be heard by a bench of not less than two judges of the high court, and shall be decided in accordance with the opinion of such judges or of the majority of any, of such judges.(8) where there is no such majority, the judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other judges of the high court and such point shall be decided according to the opinion of the majority of the judges who have heard the case including those who first heard it.(9) save as otherwise provided in this act, the provisions of the code of civil procedure, 1908 (5 of 1908), relating to appeals to the high court shall, as far as may be, apply in the case of appeals under this section.8. it is the contention raised on behalf of the commissioners of central excise that the provisions of section 5 of the limitation act would be applicable to an appeal filed under section 35g of the act. as such, the court will have the power to condone the delay and to entertain the appeal on merits. it is also argued and with some vehemence that the word 'shall' appearing in section 35g of the act will be construed as 'may'. applying the principle of regular construction, the applicability of general principles enunciated for condonation of delay would squarely apply to these cases. thus narrower construction of these provisions is not called for in the facts and circumstances of the case.9. the appeal filed by the appellant would be controlled by the provisions of the code of civil procedure in terms of section 35g(9) of the act which also would attract the applicability of the provisions of the limitation act as is applicable to an ordinary appeal filed under the provisions of the civil procedure code, 1908.10. the law of limitation from its inception has been construed on the principle of reasonable and plain construction. in the case of chairman, board of mining examination and chief inspector of mines v. ramjee : [1977]2scr904 , the supreme court said,to be liberal in meaning is to see the skin and miss the soul. the judicial key to construction is the composite perception of the deha and the dehi of the provision.11. again there is a nondistinction between applicability of the general provisions of the limitation act to other enactments in contra distinction to the specific provision of a specific statute prescribing the period for invocation of a remedy beyond which the right to invoke is taken away. it is settled principle that in construing enactments such as those prescribing a period of limitation for institution of proceedings where the purpose is only to intimate the people that after lapse of a certain time from a certain event a proceeding will not be entertained and where a strict grammatical construction is normally the only safe guide. mere hardship has not carved out any exception to the applicability of the rule of limitation. normally, strict grammatical construction of a limitation provision is the only safe guide was the view taken in the case of lucy v. henleys telegraph works (1969) 3 all er 456, as well as r. rudraiah v. state of karnataka : [1998]1scr553 . some times hardship could arise from enforcing the provision of limitation of a statute. but this all will depend on the intent of the legislature which is to be seen from the language of the provision. it is abundantly clear from its language that it excludes the application of other general provisions and intends to give the special provision of the special act overriding effect. but once the plain reading of the provision shows exclusion of applicability of other general provisions, per se or by necessary implication, then the court would be required to enforce those provisions irrespective of the hardship likely to follow as a result of legal bar created by the provisions. a limitation provision within which steps have to be taken for recovery of dues not levied or not paid or short paid or erroneously refunded is subject to the rule of strict construction. (j.k. cotton spinning and weaving mills co. ltd. v. collector central excise : 1998(99)elt8(sc) . thus special provisions curtailing the normal period of limitation for settlement for prosecution have also been strictly construed and benefits of reduced period of limitation, condonation or excuse may not be applicable to such situations. the law of limitation is founded on public policy. its aim being to secure the quiet of the community and to prevent oppression. the law framers fixed the time for determination of the controversies at different levels and they should be raised and controverted limited to a fixed period of time. it is not expected that they should be immortal. rule of limitation is intended to serve ends of justice by preventing continued litigation and requiring the aggrieved to act with expeditiousness and in any case within the prescribed period of limitation and to ensure that a succeeded party can enjoy fruits of the result of their litigation. in that sense, the object of rule of limitation is preventive and curative. it imposes a statutory bar after a certain period and giving a quietus to the suits to enforce an existing right. the law of limitation is thus feuded on public policy. it is enshrined in the maxim 'interest reipublicae ut sit finis litium' (it is for the general welfare that a period be part to litigation). limitation as such does not destroy the rights of the parties but bars a remedy which otherwise was available to the party within the period prescribed. object being that an unlimited and perpetual threat of litigation is avoided as it leads to disorder and confusion and creates insecurity and uncertainty. in other words, it also helps in advancing the cause of doctrine of finality. another principle which would help in construing these provisions is that presumption the legislature was aware of all the relevant laws and opted to word the provision in a particular manner will be a circumstance which will always would be in favour of the legislation. the provisions of section 35g have been worded by the framers of law with a specific language and clear intent and in face of the existing general provisions of the limitation act. exclusion of applicability of provisions of other statutes to a special statute could be by virtue of specific language or by necessary implication. (reference : u.n. mitra's law of limitation and prescription, 12th edition 2006 and principles of statutory interpretation by justice g.p. singh, 11th edition 2008).12. expiration of the period of limitation as a necessary corollary gives rise to a right in favour of the beneficiary of the order. this right attains higher dimensions and greater projection when the provisions relating to such an appeal do not permit condonation in the event the remedy is invoked after the prescribed period. where the language of the provision is unambiguous and clear, there is no provision under the special act giving inherent power to the court to condone the delay and intent of the legislature is clear to exclude recourse to general provision, the courts would hardly have any power to condone the delay on general principles or by recourse to inherent powers that may be vested in the court by its very constitution.13. in the case of boota mal v. union of india : [1963]1scr70 , legal principle was stated by the court that ordinarily the words of a statute have to be given their strict grammatical meaning and equitable considerations are out of place, particularly in provisions of law limiting the period of limitation for filing suits or legal proceedings. this indicates applicability of rule of strict construction to the law of limitation.14. furthermore, in the case of ramlal and ors. v. rewa coalfields ltd. : [1962]2scr762 , was accepted as a principle of law that upon expiration of period of limitation prescribed under a statute, a right in favour of the beneficiary or decree holder to treat the decree or order binding between the parties accrues and this is a legal right which accrues and should not be light heartedly disturbed.15. reiterating the above principles with approval, the supreme court in the case of antonysami v. arulanandam pillai (d) by l.rs. and anr. : air2001sc2967 , held as under:16. the fixation of periods of limitation are bound to be to some extent arbitrary and may at times result in hardship. but in construing such provisions equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. (see ). the decree was enforceable immediately after the date specified in the decree i.e. 23.9,1966 for the decreeholder to deposit the consideration money....16. even in the case of municipal corporation of delhi and ors. v. international security & intelligence agency ltd. : [2003]1scr951 , the supreme court took the view that law of limitation operates with all its rigour and equitable considerations have no place in applying it.17. the hardship or equitable grounds per se may not grant power to the court to condone the delay in face of specific provisions of the act. dealing with appeal under section 39 of the arbitration act, 1940 with regard to the provisions of limitation, the supreme court in the case of p.k. ramachandra v. state of kerala and anr. : 1997ecr785(sc) , held as under:6. law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. the discretion exercised by the high court was, thus, neither proper nor judicious. the order condoning the delay cannot be sustained. this appeal, therefore, succeeds and the impugned order is set aside. consequently, the application for condonation of delay filed in the high court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. no costs.18. the law of limitation has been subjected to some liberal construction but primarily in relation to its application under sections 5 or 14 of the limitation act. as far as this approach has not been adopted in relation to specific and special legislation which themselves provide for period of limitation and grant no power to the courts to condone the delay. the consistent view appears to be that the limitation periods specified by special or local laws must be strictly applied. (see india house v. kishan n. lalwani : [2002]supp5scr522 .19. the power of the court to condone the delay essentially would flow from the provisions of the relevant law and inherent powers of the court could hardly be applied where the statute specifies the period of limitation and does not leave court apparently or by necessary implication to the general provisions covering the field of limitation.20. limitation even in common parlance has been explained as the act of limitation, the state of being limited a restriction and a statutory period after which a law suit or prosecution cannot be brought in the court of law. no system of administration of justice permits or grants delay as a matter of right. on the contrary, maxim lex reprobate moram is the precept to governance of law. the provisions under the general or a special statute which provides for act and occasions to be taken with a specified period are based upon the maxim omnes actiones in mundo infra cetra tempora habent limititationem. as already noticed, the limitation, particularly in special statute is subjected to reasonable or strict construction as may be bar of limitation causes hardship as delays in law are odious. the period of limitation once starts from terminus a qua, it does not stop, may be the party in default, is entitled to exclusion or condonation if specifically so contemplated under the provisions of the relevant law. it is expected of every litigant to be vigilant and mindful of his right as time runs against the indolent and who are not mindful of their rights. another point of view which supports strict interpretation is of law of limitation is that the remedy and relief both could be declined on the ground of laches, that is, where a party could invoke the remedy but there is unreasonable delay in pursuing the right of claim, the course of equity even there the court would decline to grant a relief to the applicant. laches, thus, are capable of prejudicing and existing legal right. (referred in blacks law dictionary, 8th edition). this all is sufficiently indicative of enforcement of law of limitation with all its vigour except for the exceptions carved out in the provision itself. this principle squarely applies with greater impact upon the special legislations providing a special period for remedies available under that statute. in the present cases, we are concerned with the language of section 35g of the central excise act, 1944. under sub-section (1) of section 35g, an appeal shall lie to the high court from every order passed in appeal by the appellate tribunal passed on/or before 1st july, 2003 but only where the high court is satisfied that the case involves a substantial question of law. sub-section (2) further commands that the party aggrieved by the order of the appellate tribunal, `may' file an appeal to the high court but such appeal under sub-section (1) `shall' be filed within 180 days from the date from which the order appealed against is received by the party. there is no provision in this section which gives power to the high court to condone the delay or to entertain an appeal if filed beyond the prescribed period of limitation under section 32g(2)(a). it must be noticed that the section elaborately deals with the necessity for framing the question of law entertained and deciding the question of law. mindful of the entire procedure to be followed by the high court while dealing with such appeals, the legislature has even gone to the extent of noticing a minute matters like giving powers to the high court to frame any other substantial question of law if it is so satisfied and which had not been framed in the memorandum of appeal. not only that the central excise act is a complete act and a code in itself but even section 35g of the act provides for complete procedure including limitation within which appeal has to be filed, how it is to be entertained and the powers of the high court in deciding such an appeal. section 35g(9) of the act opens with very specific expression 'save as otherwise provided in this act, the provisions of the code of civil procedure, relating to appeals to the high court shall, as far as may be, apply in the case of appeals under this section'. thus, the applicability of the provisions of civil procedure code is restricted and, thus, procedural provisions are made applicable to the act but only and subject to the condition that provisions of the act shall override and have preferential application. in section 35g, thus, there is no power given to the high court to entertain an appeal filed after the expiry of 180 days from the date of receipt of the copy of the order passed by the appellate tribunal. the expression `shall' in these circumstances, cannot be construed or read as `may'. the legislature in the same section i.e. section 35g(2), has used two different expressions `may' and `shall be'. the presumption would be that both these expressions have been used by the legislature purposefully and being mindful of their consequences and relevancy under the scheme of the provisions. obviously, it has been stated that an aggrieved party against whom the order passed by the appellate tribunal may file an appeal. `may', thus, has to be given its plain and simple meaning as it is always in the discretion of a party to prefer or not to prefer an appeal against the order from which it is aggrieved. however, in the continuation of the same sentence, it has been commanded by the legislature that such appeal under the sub-section shall be filed within the prescribed period of 180 days from the date the order of the authority is received by the party. there is no justification whatsoever to avoid the consequences of the expression `shall' by reading out as `may'. period of limitation can hardly be left to the discretion of the party as it is the command of the legislature that an act should be done within the specified period and obviously, thereafter it would be hit by the bar of limitation created under section 35g(2) of the act. the argument raised on behalf of the appellant that since the provisions of the civil procedure code are applicable, thus, the appeal would have to be treated as an ordinary appeal under the civil procedure code and consequently, the provisions of section 5 of the act would be applicable per se is unsustainable. we have already noticed that the provisions of section 35g(9) are procedurally applicable subsequent to the entertainment of the appeal by the court in accordance with the provisions of the central excise act as the appeal is in furtherance to a statutory provision and not provided for under the provisions of the civil procedure code. secondly, these provisions of the procedural law are to apply in so far as it may be possible and subject to the provisions of the act. once the act provides for limitation with the aid of the civil procedure code, it would be impermissible to apply the provisions of section 5 of the limitation act with the aid of the provisions of code of civil procedure. we have no hesitation in rejecting the arguments raised on behalf of the appellants.21. we may usefully refer to a recent judgment of the supreme court in the case of commissioner of customs & central excise, mumbai v. punjab fibres ltd. : 2008(223)elt337(sc) , where while dealing with the provisions of section 35g of the central excise act, 1944 itself, the supreme court held that there was no provision under the special statute for condonation of delay and as such, the high court had no power to condone the delay in making an application for reference. provisions of section 35h of the act requires a party to make an application within 180 days from the date upon which the notice of the order under section 35c passed before the first day of july, 2003 is served upon the party to make an application requesting for deciding any question of law arising from such order of the tribunal. the language of section 35h is practically para materia to section 35g(1) of the act. in fact, it does not use the expression `shall' as used in section 35g of the act. on the contrary, it uses the expression `may' in relation to the option of a party to file an appeal or not. the words used in section 35h are `within 180 days' while in section 35g, the expression used is `shall be filed within 180 days'. certainly, on its plain reading, the language of section 35g is much more emphatic and commanding. it hardly leaves a scope for doubt that section 35g would be liable to a liberal construction reading into it the provisions of section 35 of the act in comparison with section 35g of the act.22. in the case of punjab fibres ltd. (supra), the supreme court has clearly enunciated the principles while relying upon its earlier judgments in the cases of singh enterprises v. commissioner of central excise, jamshedpur and ors. : 2008(221)elt163(sc) and vinod gurudas raikar v. national insurance co. ltd. : [1991]3scr912 and finally concluded that:6. at this juncture, it would be appropriate to take note of section 35g which provides for an appeal to the appellate tribunal which specifically says that it has to be within three months from the date on which the impugned order is communicated. but proviso to section 35g permits the appellate tribunal to allow the appeal even after the aforesaid limitation prescribed in clause 1 is expired if the tribunal is satisfied that there was sufficient cause for not filing the appeal within the prescribed time. no such provision for condonation of delay exist in section 35h. in other words, the legislative intent is clear that the parliament never intended that delay in filing the reference application under section 35h could be condoned.7. it is also to be noted that under section 35e(3) provision for limitation has been provided. here again, the outer limit for condonation has been indicated.8. recently in singh enterprises v. commissioner of central excise, jamshedpur and ors. : 2008(221)elt163(sc) the scope for condonation of delay beyond the prescribed period was considered. it was inter alia noted as follows:6. at this juncture, it is relevant to take note of section 35 of the act which reads as follows: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 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.7. it is to be noted that the periods 'sixty days' and 'thirty days' have been substituted for 'within three months' and 'three months' by act 14 of 2001, with effect from 11.5.2001.8. the commissioner of central excise (appeals) as also the tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. the period upto which the prayer for condonation can be accepted is statutorily provided. it was submitted that the logic of section 5 of the indian 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 upto 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.9. above being the position, the high court was justified in holding that there was no power for condonation of delay in filing reference application.23. as is obvious from the bare reading of section 35g of the act, it does not provide for condonation of delay or entertainment of an appeal by the high court after the prescribed period of limitation of 180 days from the date of receiving of the order are over. the provision is definitely unambiguous and does not admit of any laxity by the party concerned in relation to the period of limitation. the only distinction between the provisions of sections 35g and 35h respectively, is that under one an appeal lies to the high court while under the other, the reference is to be made to the high court. at the cost of repetition, we may notice that the expression `shall' is incapable of any dilution, at least, in comparison to the word `within'. the language used by the legislature is clear a command to adhere to the period of limitation and leaves no scope of carving out exception to the rule of limitation in such circumstances, is to be construed strictly and would operate with all its vigour. in the case of singh enterprises (supra), the supreme court was primarily concerned with the condonation of delay in relation to an appeal filed before the commissioner. there was delay of 21 months from the date of receipt of the order of the commissioner. in terms of the language of the provision of section 35 of the central excise act, delay in excess of the prescribed period of 60 days could be condoned only upto a further period of 30 days and the court held that the commissioner (appeals) had no power to condone the delay, even for a sufficient cause, beyond the period of 30 days. referring to the language of that provision, that is, section 35, the court held that there was complete exclusion of section 5 of the limitation act and the view taken by the commissioner and the high court that delay could not be condoned was correct law.24. the learned counsel appearing for the appellants also relied upon the judgment of the supreme court in the case of state of goa v. western builders : air2006sc2525 where the court took the view that in that case with reference to section 43 of the arbitration and conciliation act, 1996 and the limitation act, 1963, the court held that limitation act would apply to its limited extent by virtue of section 29(2) of the limitation act, what is excluded in respect of the application of setting aside an award under section 34 of the act of 1996. applicability of section 5 and section 3 read with schedule to the limitation act and the application for condonation of delay upto a period of 30 days can be made before the court in respect of the application under section 34 and not beyond that. the applicability of exclusion of period contemplated under section 14 was held to be applicable. we are unable to see the advantage that the present appellants wish to draw from this judgment. there is no ratio decedendi of this judgment which can be applied to the present case either on facts or on law. section 43 of the act read with other provisions of both the acts places the referred case on entirely different footing and would be governed by different principles of law.25. let us now deal with certain examples of special legislation where the courts have held that provisions of the limitation act would not be applicable for expressed or implied exclusion.26. in the case of state of karnataka v. laxman 2005(8) scc 769, the supreme court clearly stated that law of limitation is a statute of repose and not an equitable piece of legislation. the court then while considering the provisions of section 18(1), 18(2) and 18(3) of the land acquisition act, 1894 clearly held that condonation of delay in filing a reference or even in invoking the provisions of section 28a, would be impermissible and application under section 18(2) has to be made within the time fixed.27. in the case of nasiruddin and ors. v. sita ram agarwal 2003 sc 1543 while the court dealing and construing the provisions of rajasthan premises (control of rent and eviction) act as amended by rajasthan act 14 of 1976 in relation to eviction of a tenant and default of payment of rent, held that section 5 of the limitation act was inapplicable as sub-section (4) of section 13 was mandatory in its terms. the court held as under:40. thus, on an analysis of the aforesaid two decisions, we find that wherever the special act provides for extension of time or condonation of default, the court possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the court does not have the power to do so.28. in this very judgment, the supreme court also held that where the intent of the legislature is clear and the statutory provision is plain and unambiguous that court shall not interpret the same language in different manner than the one expressed by the legislature, only because of harsh consequences arising therefrom and the court declined to read the word `shall' as `may' in the circumstances of the case.29. in the case of union of india v. popular construction company : air2001sc4010 , the court while dealing with the provisions of section 34(3) of the arbitration and conciliation act, 1996, held that the provisions of section 5 of the limitation act were not applicable to the proceedings for setting aside an arbitral award and the language of the section particularly in face of the expression `but not thereafter' used in proviso to sub-section (3) amounted to an express exclusion within the meaning of section 29(2) of the limitation act. this case assumes some significance in the present context for the reason that the findings were recorded by the supreme court despite the provisions of section 43 of the 1996 act. the court while answering the question in the negative held as under:10. this decision recognises that it is not essential for the special or local law to, in terms, exclude the provisins of the limitation act. it is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. as has been said in hukumdev narain yadav v. lalit narain mishra: (scc p. 146, para 17) '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.11. thus, where the legislature prescribed a special limitation of 60 days was to be computed after taking the aid of sections 4,5 and 12 of the limitation act, the specific inclusion of these sections meant that to that extent only the provisions of the limitation act stood extended and the applicability of the other provisions, by necessary implication stood excluded.12. as far as the language of section 34 of the 1996 act is concerned, the crucial words are 'but not thereafter' used in the proviso to sub-section (3). in our opinion, this phrase would amount to an express exclusion within the meaning of section 29(2) of the limitation act, and would therefore bar the application of section 5 of that act. 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.30. on the analysis of the above enunciated principles and the legal examples cited, it can safely be said that it is not essential for the special or local law, in terms, to exclude the provisions of the limitation act. it is sufficient that if on a consideration of the language of its provision relating to limitation, the intention to exclude can necessarily be implied. the essence of providing a limitation is that a legal right of remedy available at a given point of time could distinguish in law after expiry of the said period. where the legislature gives no power to the court to condone the delay after the specified period of limitation, the court may not be able to assume such a power in exercise of its inherent jurisdiction. the law is what it reads on its plain and simple reading. the provisions of section 35g admit no ambiguity. in no uncertain terms it commands the institution of the appeal within a period of 180 days from the date of receipt of the order of the appellate tribunal by the aggrieved party whereafter the provisions do not give or vest the court with any power to entertain an appeal thereafter. such exclusion of the provisions of the limitation act is, thus, implicit by necessary implication. there is neither general provision in the central excise act which makes the provisions of limitation act applicable to the remedies provided under this special act nor the provisions of section 35g expressly empowers the court to condone the delay. as stated in the case of nasiruddin and ors. (supra) while dealing with the cases under special act where the statute does not provide power to extend the time or condone the delay, the court does not have the power to do so. the supreme court while dealing with the case under the u.p. sales tax act as regards the maintainability of revision beyond the prescribed period of limitation though held that the appellate authority was not a court but still specified the principle of law that section 14(2) of the limitation act does not in terms apply to the proceedings before them.31. in the case of the commissioner of sales tax, uttar pradesh, lucknow v. parson tools and plants, kanpur : [1975]3scr743 cautioning against importing general provisions into special statute, the court held as under:17. thus the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum timelimit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of section 14(2) o the limitation act.18. we have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the lawgiver; more so if the statute is a taxing statute. we will close the discussion by recalling what lord hailsham (at p. 11 in pearlberg v. varty (1972) all er 6) has said recently in regard to importation of the principles of natural justice into a statute which is a clear and complete code, by itself.it is true of course that the courts will lean heavily against any construction of a statute which would be manifestly fair. but they have no power to amend or supplement the language of a statute merely because in one view of the matter a subject feels himself entitled to a larger decree of say in the making of a decision than a statute accords him. still less is it the functioning of the courts to form first a judgment on the fairness of an act of parliament and then to mend or supplement it with new provisions so as to make it conform to that judgment.' for all the reasons aforesaid, we are of the opinion that the object, the scheme and language of section 10 of the salestax act do not permit the invocation of section 14(2) of the limitation act, either, in terms, or, in principle, for excluding the time spent in prosecuting proceedings for setting aside the dismissal of appeals in default, from computation of the period of limitation prescribed for filing a revision under the salestax act. accordingly, we answer the question referred, in the negative.32. another settled principle of law is that the court ought to avoid an interpretation upon a statute of limitation by implication or in reference as may have a penalising effect unless it is driven to do so by the irresistible force of the language used by the legislature. : air1975sc1089 .33. the limitation act is a piece of adjective or procedural law and not of substantive law. rules of procedure whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication. they cannot be extended by analogy or reference to proceedings to which they do not expressly apply or could be said to be applied by necessary implication. it would, therefore, not be correct to apply any of the provisions of limitation act to matters which do not strictly fall within the perview of those provisions. the provisions do not adumbrate any general principles of a substantive law nor do they confer any substantive rights. therefore, they cannot be permitted to have greater application than what is explicit or implicit in them. : [1964]2scr241 .34. in the case of nasiruddin and ors. (supra), the supreme court had also umbiguously stated the principle that in absence of statutory provision, no inherent powers of the court exist to condone the delay. the unambiguous language of section 35g fixes the period of limitation within a selfcontained code and does not provide for condonation of delay by the high court. the scheme of the provision is such that it would be difficult to import or read into it the provisions of the limitation act, 1963 particularly, section 5. the right to file an appeal under section 35g is a statutory right and has to be exercised in the mode, manner and limitation specified in the special statute itself. the language of the provisions seen in conjunction with legislative intent and the objects of expeditious disposal sought to be achieved would exclude the application of section 5 of the limitation act by necessary implication. once the provisions of section 5 are not attracted, this court inherently would have no power to condone the delay in filing the present appeals irrespective of the extent of delay. thus, we have no hesitation in holding that the appeals filed under section 35g of the central excise act, 1944 beyond the prescribed period of limitation in terms of section 35g(2)(a) would be barred by time and this court would have no jurisdiction to condone the delay and entertain the appeal filed after the said period of limitation.35. resultantly, the notices of motion nos. 2028 of 2008, 1980 of 2008, 4110 of 2006, 1053 of 2007, 1646 of 2008, 2030 of 2008 and 2045 of 2008 for condonation of delay are dismissed and central excise appeal (lodging) nos. 114 of 2008, 139 of 2008, 352 of 2006, 362 of 2006, 66 of 2008, 96 of 2008 and 115 of 2008 do not survive for consideration. all these appeals and notices of motions are, accordingly, disposed of.