M.M.KUMAR, J. - (1.) THIS application filed under Article 226 of the Constitution read with Section 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908 prays for review and recalling of order dated 23.1.2004 passed by a Division Bench of this Court in Civil Writ Petition No. 1139 of 2004. It has further been prayed that after recalling of the afore-mentioned order the writ petition be decided on merits. It would be appropriate to first read order dated 23.1.2004 which is as under:- "Counsel fairly concedes that in view of the law laid down by the Apex Court in Union of India v. M/s. Popular Construction Co., 2002(1) RCR(Civil) 124 : 2001(8) Supreme Court Cases 470, delay in filing the appeal under Section 35 of the Central Excise Act, 1944 beyond 90 days could not be condoned. The writ petition being devoid of any merit is dismissed in limine." The afore-mentioned order was challenged by the applicant in SLP bearing SLP (Civil) No. 3729 of 2005. The Special Leave Petition was disposed of by Hon'ble the Supreme Court on 11.11.2005 by observing as under : "The learned counsel appearing on behalf of the petitioners states that the concession which has been recorded in the High Court's order was incorrectly made. We are of the view that this is an issue which should be raised before the High Court. On the basis of the facts as recorded in the High Court's order, the Special Leave Petition (C) No. 3729/2005 is dismissed."
(2.) IT is appropriate to mention that in the writ petition filed under Article 226 of the Constitution the applicant had challenged order dated 2.9.2003 passed by the Commissioner of Central Excise (Appeals) under Section 35 of the Central Excise Act, 1944 (for brevity 'the Act'). The appeal was dismissed by holding that the order in original was received by the applicant on 20.12.2002 and appeal was filed on 1.7.2003 which was after the expiry of 6 months 11 days from the date of receipt of the impugned order. The Commissioner (Appeals) referred to Section 35 of the Act and observed that the appeal could have been filed within 60 days from the date of receipt of the order by the appellant which could be further extended by the Commissioner (Appeals) by another 30 days. The appeal was dismissed on the ground that there was no provision under Section 35 of the Act for filing of appeal beyond 90 days and therefore the appeal which was filed after delay of 6 months 11 says was held to be time barred and rejected on that ground. When the matter came up for hearing before this Court on 23.1.2004, learned counsel for the applicant who had appeared for the petitioner in the main petition made a statement that the judgment of Hon'ble the Supreme Court in the case of Union of India v. M/s. Popular Construction Co., 2001(8) SCC 470 did not permit condonation of delay in filing the appeal under Section 35 of the Act before the Commissioner (Appeals). Accordingly, the writ petition was dismissed.
(3.) MR . B.R. Mahajan, learned counsel for the applicant has submitted that there was an error in making admission before this Court on his part as recorded in the order dated 23.1.2004 in as much as the judgment of Hon'ble the Supreme Court in the case of Popular Construction Co. (supra) was wrongly relied. According to the learned counsel the judgment in Popular Construction Co.'s case (supra) did not deal with the period of limitation as prescribed by Section 35 of the Act and in fact it deals with the period of limitation as prescribed in Section 34(3) of the Arbitration and Conciliation Act, 1996 (for brevity 'the 1996 Act'). According to the learned counsel the language of the proviso to Section 34(3) of the 1996 Act as interpreted by Hon'ble the Supreme Court is such that Section 5 of the Limitation Act, 1963 (for brevity 'the Limitation Act') does not remain applicable and it has to be regarded as expressly excluded within the meaning of Section 29(2) of the Limitation Act. However, he has placed reliance on para 8 of the judgment in Popular Construction Co.'s case (supra) to submit that had the proviso not been there then the provisions of Sections 4 to 24 of the Limitation Act would have remained applicable. He has pointed out that language of Section 35 of the Act is entirely different and there is nothing in that provision which may be considered pari materia to the proviso to Section 34 of the 1996 Act as interpreted by Hon'ble the Supreme Court.;