State Of Punjab And ANR. v. M/S Shreyans Industries Ltd, Ahmedagarh

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

Date of Decision: December 21, 2009 State of Punjab and another ...Appellants

Versus

M/s Shreyans Industries Limited, Ahmedgarh, District Sangrur

...Respondent

CORAM:

HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE RAM CHAND GUPTA

Present:

Mr. Piyush Kant Jain, Addl. AG, Punjab, for the appellant(s) in VATAP Nos. 22, 33 & 60 to 64 of 2009 & for the respondent(s) in VATAP Nos. 55 & 70 of 2009 Mr. K.L. Goyal, Senior Advocate, with Mr. Sandeep Goyal, Advocate, for the respondent(s) in VATAP Nos. 22, 33 & 60 to 64 of 2009 & for the appellant(s) in VATAP Nos. 55 & 70 of 2009 1.

To be referred to the Reporters or not?

2.

Whether the judgment should be reported in the Digest?

M.M. KUMAR, J.

This order shall dispose of a bunch of 9 appeals2. A common question of law has been raised in all these appeals, namely; "Whether the delay in filing of the appeal beyond the period of 60 days prescribed by Section 68(2)(a) of the Punjab Value Added Tax Act, 2005, could be condoned by entertaining an application under Section 5 of the Limitation Act, 1963?" 2.

In all the appeals there is an application invoking the provisions of Section 5 of the Limitation Act, 1963 (for brevity, the Limitation Act'), seeking condonation of delay in filing the appeal. 3.

The aforesaid question is no longer res integra as Hon'ble the Supreme Court in the case of Commissioner of Customs & Central Excise

v. Hongo India (P) Ltd., (2009) 5 SCC 791, has laid down that the Central Excise Act, 1944 (for brevity, 'the Excise Act') is a complete code by itself which alone is to govern the matters provided by that Act. It has further been held that in the presence of special law providing for limitation with regard to filing of appeal, the Court could examine the extent of exclusion of Limitation Act by such special law. On examination of the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H of the Excise Act, it has been concluded in paras 32 and 33 that the provisions of Limitation Act were not to apply. The view expressed by Hon'ble the Supreme Court in the aforesaid paras reads thus:- "

32.

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

33.

Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90

days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision."

4.

When we examine the provisions of the Punjab Value Added Tax Act, 2005 (for brevity, 'the VAT Act'), the position is no different than the one prevailing under the Excise Act. A perusal of Section 62(4) of the VAT Act provide for a period of 30 days for filing the first appeal. According to Section 62(5) no appeal could be entertained unless it is accompanied by satisfactory proof of the prior minimum payment of twenty five per cent of the amount of tax, penalty and interest, if any. Likewise, under Section 63(2) a period of 30 days from the date of the communication of the order of the first Appellate Authority has been provided. The delay in filing the appeal beyond the period specified under Section 62(4) and 63(2) could be condoned in the interest of justice and for the reasons to be recorded in writing by the Appellate Authority.

However, in Section 68(2)(a) a period of 60 days for filing the appeal before this Court has been provided but there is no provision parallel to Section 64 providing for condonation of delay. The aforesaid provision clearly shows that the VAT Act like the Excise Act is a complete code in itself. The reasoning adopted by Hon'ble the Supreme Court in the case of Hongo India Private Limited (supra) is fully applicable to the question raised in the present appeals. Therefore, we are of the view that the application(s) seeking condonation of delay filed under Section 5 of the Limitation Act cannot be accepted.

5.

Learned State counsel has requested for adjournment so as to enable the appellant State to amend the provisions of the VAT Act, as has been done by making addition of sub-section (2A) in Section 35G of the Excise Act, which has been added by the Parliament by way of amendment on 19.8.2009 by Finance (No. 2) Act, 2009. We do not know how it will help the pending appeals.

6.

For the reasons aforementioned, the application(s) filed under Section 5 of the Limitation Act seeking condonation of delay in filing the appeals are dismissed. Consequently, the appeals also fail and are dismissed being time barred.

(M.M. KUMAR) JUDGE (RAM CHAND GUPTA) December 21, 2009 JUDGE Pkapoor

1VATAP No. 22 of 2009State of Punjab and another v. M/s Shreyans Industries Limited2VATAP No. 33 of 2009State of Punjab and another v. M/s Tynor Orthotics Ltd.3VATAP No. 55 of 2009M/s Berkeley Automobiles v. State of Punjab and another4VATAP No. 60State of Punjab and another v. M/s J.C.T. Fibres Ltd.5VATAP No. 61 of 2009State of Punjab and another v. M/s D.K. Arora Garments, Ludhiana6VATAP No. 62 of 2009State of Punjab and another v. M/s Monsanto India Limited, Zirakpur7VATAP No. 63 of 2009State of Punjab and another v. M/s Monsanto India Limited, Zirakpur8VATAP No. 64 of 2009State of Punjab and another v. M/s Monsanto India Limited, Zirakpur9VATAP No. 70 of 2009M/s Puja Hosiery v. State of Punjab and another (M.M. KUMAR) JUDGE (RAM CHAND GUPTA) JUDGE