1. Heard Sri A.P.Mathur, learned counsel for the petitioner and Sri Amit Mahajan, learned counsel for respondent no.2.
2. The writ petition is directed against order dated 27.9.2013 passed by Commissioner (Appeals) Noida, dismissing petitioner's claim being barred by time and also beyond permissible limit by which delay could have been condoned under Section 85(3A) of the Central Excise Act. Under the Act period of limitation prescribed for filing appeal is two months but for sufficient cause shown by appellant, Commissioner of Central Excise (Appeals) has power to allow presentation of appeal after two months but within a further period of one month, therefore, maximum period including condonable period provided in the statute is three months. Beyond this, appeal is barred by time. It is not entertainable by appellate authority under the aforesaid provision.
3. Learned counsel for the petitioner has challenged vires of Section 35 of Central Excise Act, 1944 on the ground that it is ultra vires of Constitution as also statute since it debar petitioner from availing statutory right of appeal irrespective of time.
4. Despite repeated query learned counsel for the petitioner could not reply as to in what manner aforesaid provision is ultra vires and of what provision of the constitution. The right of appeal is statutory right and therefore, can be availed only in the manner it is provided in the statute. Therefore, to suggest that statutory right and the statutory limitation can be said to be ultra vires of each other is something absurd and patently misconceived. Counsel for the petitioner could not dispute that provision in question neither lacks legislative competence nor is ultra vires to fundamental rights or any other provision in the Constitution. Therefore, prayer challenging validity of Section 35 is totally untenable. In fact no substantial argument has been advanced on this aspect.
5. The only thing, that has been stressed at length is that under Article 226 of Constitution, this Court has power to direct appellate authority to decide appeal even if it is beyond time provided in statute and for this purpose reliance is placed on a Division Bench judgment of High Court of Gujrat at Ahmedabad in Texcellence Overseas Vs. Union of India, 2013 (293) E.L.T. 496 (Guj.).
6. The right of appeal is not an inherent right but a substantive right conferred by statute and has to be governed by the procedure prescribed therefor. When limitation is prescribed for filing appeal, the same has to be observed accordingly. Ignoring provisions of statute, the Court cannot direct to entertain an appeal by conferring a jurisdiction, which is not otherwise vested with appellate authority. When a period of limitation is prescribed for filing appeal and that period had expired, meaning thereby right of other party has matured and attained finality. In exercise of jurisdiction under Article 226, this Court would not and cannot extend the period of limitation not provided in the statute, else, it will amount to passing an order in the teeth of the statute.
7. A similar matter has already been considered by this Court. Section 13(1) of Water (Prevention and Control of Pollution) Cess Act, 1977 (hereinafter referred to as "the Act") while conferring a right of appeal upon a person or local authority who is aggrieved by an order of assessment made under Section 6 or by an order imposing penalty made under Section 11, states that he may, within such time as may be prescribed, appeal to the appellate authority which can be filed within such time as may be prescribed and in the form and manner as prescribed. Rule 9 of the Water (Prevention and Control of Pollution) Cess Rules, 1978 (hereinafter referred to as "the Rules") provides the period within which an appeal can be filed. Rule 9(3) provides a period of 30 days from the date of communication of order of assessment or order imposing penalty within which period the appeal ought to be filed by the aggrieved person. The proviso thereof empowers the appellate authority to condone delay in preferring appeal if there existed good and sufficient reasons and it is satisfied thereof, but the said power is limited and it cannot condone delay beyond 45 days from the date of communication of the order appealed.
8. Therefore, the period of limitation has been prescribed under the statute. The power of condonation of delay is narrowed down to the extent that the appellate authority cannot condone a delay in filing the appeal beyond 45 days from the date of communication of the order appealed against. It is not in dispute that all the appeals in the present matter were filed by the petitioner after much longer time after expiry of 45 days from the date of communication of the assessment orders.
9. It is no doubt true that in the matter of procedure, the purpose is to facilitate dispensation of justice. The procedure is to further its end and is not a penal enactment for punishment and penalty. Whenever permissible, statutory procedure should not be construed in a technical sense which may leave no room for reasonable elasticity of interpretation, which may be found necessary in a given case for dispensation of justice. The laws of procedure are grounded on the principles of natural justice which require that no one should be condemned unheard and decision should not be reached behind their back. By and large, in the matter of procedure, the Courts, time and again, have taken a lenient and elastic view in order to mould the situation to meet the ends justice. To this extent, legal proposition is quite sound and I also do not admit any doubt. The law in this regard is well settled. As long back as in Sangram Singh Vs. Election Tribunal Kotah, AIR 1955 SC 425 the Apex Court, in respect to procedural law observed:
"Now a code of procedure must be regarded as such. It is 'procedure, something, designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it." (para 16)
10. Rules of procedure, therefore, can be termed as handmaid of justice and the objective thereof is to advance the cause of justice. It should not be applied as a tyrant but a servant, not an obstruction but an aid to justice. In Sushil Kumar Sen v. State of Bihar, AIR 1975 SC 1185, the pertinent observations of the Court are:
"The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.
The procedural law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable.... Justice is the goal of jurisprudence-processual, as much as substantive."
11. Similar observations were reiterated in State of Punjab and Anr. v. Shamlal Murari and Anr., AIR 1976 SC 1177; Ghanshyam Dass and Ors. v. Dominion of India and Ors. AIR 1984 SC 1004 and Kailash v. Nanhku, AIR 2005 SC 2441. However, these are all the cases which were dealing with situation arising out of the cases where procedure was to be observed in accordance with the Code of Civil Procedure. The Code of Civil Procedure at several places provide period within which some steps have to be taken or some orders are to be passed and the purpose thereof is to expedite the disposal of the matter so as to avoid undue delay in trial. In respect to period of limitation provided under C.P.C., the position is quite different, as is evident from what has been said by the Court in Kailash v. Nanhku (supra):
"The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away."
12. However, with respect to the period of limitation governed by the Limitation Act or the special enactments, I do not find that the matter can be dealt with treating it to be pari materia with the procedure of C.P.C. As long back as in 1918, a Full Bench of this Court in Narsingh Sahai Vs. Sheo Prasad, AIR 1918 All 389, considered the question, whether an appeal which was barred by limitation prescribed under the Limitation Act, could be treated to be within time, by giving benefit of the period under Rule 2, Chapter III of the Rules of the Court. This Court held that once limitation prescribed under the Limitation Act is over, the same cannot be alerted or extended by applying the provisions of C.P.C. or the Rules framed thereunder, inasmuch as the High Court has been conferred power under Section 122 C.P.C. to frame Rules regulating their own procedure under C.P.C. but no such power has been given to High Court so as to touch Limitation Act. The Full Bench took unanimously the following view:
"...We are unanimous in holding that this Court has no power by any rule that it may make to alter the period of limitation prescribed by the Limitation Act. We would further say that the rule as it stands was never intended to an can in no way be construed as altering in any way the Limitation Act. This Court has power to alter amend and add to rules of procedure laid down by the Code of Civil Procedure, vide Section 122, but nowhere has any power been given to it to touch the Limitation Act...."
13. The aforesaid law has continued till date and I have not been shown any other view. Even in Kailash Vs. Nanhku (supra) the Court observed that "unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice." (emphasis supplied)
14. The period of limitation, as contended by learned Counsel for the petitioner, cannot be said to be a part of procedure only, as an universal proposition. Rather it would depend upon relevant provisions of the statute and the consequences flowing thereof, i.e., as a result of expiry of the period of limitation. In many cases, it may result in accrual of substantive rights to the other side and in those cases, provisions pertaining to limitation cannot be said to be directory but have to be held mandatory. For example, under Section 6 of Land Acquisition Act, 1894, a declaration has to be made within one year from the date of notification under Section 4. The period of one year limitation gets extended by the period for which some interim order of any nature has been passed by a Court of Law. If such a declaration is not made under Section 6 within the aforesaid period, the proceedings will lapse. This view was taken by the Apex Court in State of Haryana Vs. Sukhdev, AIR 1994 SC 1255 and General Manager, Department of Telecommunications, Thiruvanantha-puram Vs. Jacob, AIR 2003 SC 1308.
15. A Division Bench of this Court in Mahavir Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 2007 2 AWC 1162 All, considering the aforesaid provisions in para 54, sub para (iii) held that "the Court does not have the power to extend the period of limitation provided under the Statute." Similarly, in various taxing statutes where the period of limitation expires, thereafter the authorities cannot proceed to pass orders against the assessee treating it to be procedural only. In those cases expiry of period of limitation provided in the statute result in vested right to the assessee like not to be assessed or face any assessment proceedings etc. before the authority concerned under the relevant Act. The illustrations may be multiplied but I do not wish to do so and feel satisfied by observing that it is not always correct to say that whenever the limitation is prescribed, it is in the nature of procedural law and, therefore, has to be read leniently and must be treated to be directory instead of mandatory. In respect to special enactments which contain substantive provisions as well as procedure to give effect to carrying out the purpose of such Act, if period of limitation is provided the same has been held to be mandatory and once such period has expired, the Court is not competent to extend limitation and thereby nullify the otherwise provision(s) under the statute.
16. In Mohd. Ashfaq v. State Transport Appellate Tribunal UP and Ors., AIR 1976 SC 2161 the Apex Court considered a similar provision which required filing of renewal application within fifteen days which could be extended but not beyond 15 days more. The Apex Court held that Section 5 of the Limitation Act is not applicable since the matter was covered by Section 58(2) and (3) of Motor Vehicles Act 1939. It further held that if the application for renewal is beyond time by more than fifteen days, the authority shall not be entitled to entertain it or in other words, it shall have no power to condone the delay. It further held that there being express provision for making application for renewal condonable only if it is not more than 15 days, the provision expressly excludes not only the power of condonation of delay under Section 5 but being special enactments, the said period even otherwise cannot be extended. The Court held that the provision may look harsh but in the scheme of the Statute the legislature has provided the same and it should not be disturbed by the Court.
17. Following the said decisions a Division Bench of this Court in U.P. State Sugar Corporation Limited v. U.P. Pollution Control Board, Lucknow and Ors. 1992(10)LCD 497, dealing with Section 13 of the Act and Rule 9(3) of the Rules, held that the period for filing appeal once expired cannot be condoned. I do not find any reason to take a different view and are in respectful agreement with the aforesaid decision of the Division Bench.
18. The same view has also been reiterated by Division Bench of this Court also in Vimal Oraganics Ltd. Vs. State of U.P. & Ors., 2008 (2) AWC 1164.
19. This court has to uphold rule of law and not to issue directions which are in the breach of the statute, therefore, period of limitation prescribed in the statute cannot be made ineffective by directing the authority to ente