Dinesh Maheshwari, J. - (1.) THIS revision petition under Section 86(2) of the Rajasthan Sales Tax Act, 1994 ("the Act of 1994"), filed by the Revenue on March 29, 2003 against the order dated August 1, 2002 as passed by the Rajasthan Tax Board, Ajmer in Appeal No. 1177/1999 is reported to be barred by limitation by two days ; and the petitioner has moved an application under Section 5 of the Limitation Act, 1963 ("the Limitation Act") for condonation of delay that has been opposed on behalf of the non -petitioner as being incompetent.
(2.) THOUGH , this Court is satisfied that on merits this revision petition remains bereft of substance ; and further, the fate of this revision petition remains sealed with the order impugned herein having already been found not calling for interference by this Court while rejecting the cognate revision petition (S. B. Sales Taxes Revision Petition Nos. 584/2005) on February 2, 2006 and, admittedly, the order passed by this Court on February 2, 2006 in rejecting the said revision petition has attained finality; but and however, for the learned Counsel for the petitioner having pressed on the revision petition and submissions having been made on the question of applicability of Section 5, Limitation Act for condonation of delay in filing the revision petition to this Court under Section 86 of the Act of 1994 and such issue being of recurrence, it appears appropriate to deal with the submissions as made at the Bar. Learned Counsel Mr. Rajesh Jain appearing for the non -petitioner with the learned Counsel Ms. Ajanta Saraswat, while opposing the application for condonation of delay has argued with emphasis that the Act of 1994 is a complete code in itself and the scheme of this enactment makes it clear that it has independent provisions relating to all aspects like filing of returns, assessment, search, seizure, imposition of penalty, appeal, revision, period of limitation, etc.,; and separate periods of limitation have been provided under different provisions like Section 26(1), 26(5) and so also for filing of first appeal under Section 84 and filing of next appeal before Tax Board under Section 85 ; and these provisions specify a period of limitation and the further period to which the delay could be condoned.
(3.) HOWEVER , learned Counsel underscored the submission, Section 86 providing for revision to this Court does not contain any provision for condonation of delay while providing different periods of limitation, one for the revision petition by a dealer under Section 86(1) at 90 days, and another for a revision petition by the Revenue under Section 86(2) of; the Act at 180 days. Learned Counsel would submit that as per the phraseology of Section 86(2) where it is enjoined that the revision through the officer or in -charge of check -post shall be filed within 180 days, the expression "shall" carries all the mandatory requirements that cannot be altered and hence applicability of Section 5 of the Limitation Act is ruled out. Learned Counsel referred to the decisions in Miles India Limited v. Assistant Collector of Customs, [1987] 30 ELT 641 (SC), Commissioner of Central Excise v. : 1988(37)ELT478(SC) , Commissioner, Sales Tax, U.P. v. , Gopal Sardar v. : (2004)4SCC252 , Fairgrowth Investment Ltd. v. : (2004)11SCC472 , Commissioner of C. Ex., Meerut -II v. Salora International, [2006] 206 ELT 61 (All), Hukumdev Narain Yadav v. : [1974]3SCR31 , Commissioner of Sales Tax, Lucknow v. : [1975]3SCR743 , Delta Impex v. : 2004(173)ELT449(Del) , Pranam Enterprises v. : 2005(192)ELT138(Del) , Jhab -boo Lal Kesara Rolling Mills v. : 1985(19)ELT367(All) , Commissioner of Sales Tax, Maharashtra v. and Commissioner of Customs, Central Excise, Noida v. : 2008(223)ELT337(SC) . Learned Counsel submitted that the decisions aforesaid even when not in relation to the Rajasthan Sales Tax, the principles therein would apply for interpretation of Section 86. According to learned Counsel, for Section 35G of the Central Excise Act being similar to the provisions of Section 86(2) of the Rajasthan Act, the principles particularly in Salora International, [2006] 206 ELT 61 (All), Gopal Sardar : (2004)4SCC252 , and Fairgrowth : (2004)11SCC472 would apply and the learned Counsel has referred to the decisions in Commissioner of Central Excise v. : 2001(132)ELT3(SC) , Devi Dass Gopal Krishan Pvt. Ltd. v. : [1994]3SCR417 and At Ravji v. State of Gujarat, [1993] 89 STC 228 (Guj) to submit that the interpretation of Supreme Court qua the provisions in pari materia would cover the issue.;