COMMNR. OF CUSTOMS, CENTRAL EXCISE, NOIDA v. M-S PUNJAB FIBRES LTD., NOIDA

Citation: [2008] 2 S.C.R. 861

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, P. SATHASIVAM

Case summary

COMMNR. OF CUSTOMS, CENTRAL EXCISE, NOIDA v. M-S PUNJAB FIBRES LTD., NOIDA.pdf

Judgment text

[2008] 2 S. C. R. 861 COMMNR. OF CUSTOMS, CENTRAL EXCISE, NOIDA II. M/S PUNJAB FIBRES LTD. , NOIDA (Civil Appeal No. 4647 of 2007) FEBRUARY 14, 2008 [DR. ARIJIT PASAYAT AND P. SATHASIVAM; JJ. ] r'I ... Central Excise Act, 1944 - s. 35-H - Reference application - Delay in filing - Power of High Court to condone the delay - Scope of - Held: High Court does not have the power to condone the delay in filing reference application since there exist no such provision in s. 35-H. The question which arose for consideration in these appeals was whether the High Court has power to condone the delay in presentation of the reference under Section 35-H of the Central Excise Act, 1944. Dismissing the appeals, the Court HELD: Section 35-G of the Central Excise Act, 1944 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 35-G permits the Appellate Tribunal to allow the appeal even after the aforesaid limitation prescribed in clause 1 is expired if the Tribunal is satisfied t that there was sufficient cause for not filing the appeal within the prescribed time. Under Section 35-E(3) provision for limitation has been provided. The outer limit for condonation has been indicated. No sue_~ provision for condonation of delay exist in Section'·35-H. The legislative intent is clear that the Parliament never intended that delay in filing the-reference application under ~ Section 35-H could be. condoned. Thus, in the instant case, the High Court was justified in holding that there was no power for condonation of delay in filing reference 861 . aJ>plication. [Paras 6, 7 and 9] [863-E-F, H, F-G; 865-E] ~. Mis Singh Enterprises v. Commissioner of Central Excise; Jamshedpur and Ors. 2007 (14) SCALE 610 - relied on. Vinod Gurudas Raikar v. National Insurance Co. Ltd. and 8 Ors.

1991 (4) SCC 333 - referred to. CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4647 of 2007. From the Judgment and Order dated 7. 2. 2007 of the High Court of Allahabad in C. E. R. A. No. 6/2004. · I • WITH ' . (CIVIL APPEAL NOS. 4677, 4678 and 5261 of 2007) AND CIVIL APPEAL NOS. 699-700 of 2006 WITH (CIVIL APPEAL NOS. 3560 of 2006, 4245, 4675 and 4676 of 2007) . B. Krishna Prasad for the Appellant. ·Sumesh Dhawan for the Respondent. · The Judgment of the Court was delivered by Dr. ARIJIT PASAYAT, J. 1. In all these appeals the question that falls for consideration is whether the High Court has power to condone the delay in presentation of the reference under Section 35-H(1) of the Central Excise Act, 1944 (in short the 'Act'). 2. Undispute"dly, in all these cases th'e reference applications were filed beyond the period provided for filing an application seeking reference. Section 35-H of the Act reads as follows: ·"35-H.

The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under .... Section 35-C passed on or after the 1st day of July, 1999 __, (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 purpose of assessment), by application in the prescribed form accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any ,--4 .. question of law arising from such order of the Tribunal. " 3. Section 35-H was substituted by Section 12a of the Finance Act. 1999. The High Court dismissed the reference application holding that it had no power to condone the delay in making the application for reference. It was noted that there was no provision permitting condonation of delay. 4.

Learned counsel for the appellant submitted that even if the Act does not provide for any condonation of delay, there is provision under the Limitation Act, 1963. --4_ 5. Learned counsel for the respondent on the other hand supported the view given by the High Court. 6. At this juncture, it would be appropriate to take note of Section 35-G which provides for an appeal to the AF>pellate 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 35-G permits the Appellate Tribunal to allow the appeal even after the aforesaid limitation prescribed t 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 35-H. In other words, the legislative intent is clear that the Parliament never intended that delay in filing the.

reference application under Section 35-H could be condoned. '" \ 7. It is also to be noted that under Section 35-E(3) provision for li~itation has been provided. Here again, the outer limit for condonation has been indicated. 8. Recently in Mis Singh Enterprises v. Commissioner of \ . Central Excise, Jamshedpurand Ors. (2007 (14) SCALE 610) ~ 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 ~-Jo..

, under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of CentrakExcise (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. _, (i2) 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 'i , 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 hast to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of ,.. _ delay. Even the hope or expectation of getting the benefit ,,. ,, of an enactment presupposes applicability of the enactment when the need arises to take its benefit. In the present case the occasion to take the benefit of the provision for condonation of delay in filing the claim arose • 1--, only after repeal of the old law.

Obviously the ground for condonation set up as 'sufficient cause' also relates to the )time after the repeal. The benefit of the repealed law could not, therefore, be available simply because the cause of • action for the claim arose before repeal. 'Sufficient cause' as a ground of condonation of delay in filing the claim is distinct from 'cause of action' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. We accordingly hold that the High Court was right in its view that the case was covered )by the new Act, and delay for a longer period than six months could not be condoned. The appeal is dismissed, but in the circumstances, without costs. " 11. Above being the position, the appeals are dismissed without any order as to costs. CIVILAPPELLATE JURISDICTION: Civil Appeal Nos. 699- 700 of 2006. WITH 1 Civil Appeal Nos. 3560 of 2006, 4245, 4675 and 4676 of ~ 2007. Dr. ARIJIT PASAYAT, J. 1.

In these appeals, the only question that arises for consideration is whether then~ was power for condonation of delay in seeking a reference under Section 35-H of the Central Excise Act, 1944. By judgment delivered separately in Civil Appeal No. 4647 of 2007 we held that this is not permissible. It was inter alia held as follows: "At this juncture, it would be appropriate to take note of. I t Section 35-8(3) 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 Sub-Section (5) of Section 35-8 permits • the Appellate Tribunal to admit an appeal even after the afores§lid period of limitation prescribed in Sub-Section (3)expired if the Tribunal is satisfied that there was sufficient cause for not filing the appeal within the prescribed time. Similar is the position for cross-dejection under Sub-Section (4).

No such provision for condonation of delay exists in Section 35-H (1 ). In other words, the legislative intent is clear that the Parliament never inten,ded that delay in filing the reference application under Section 35-H (1) could be condoned. i It is also to be noted that under Section 35-E (3) provision for limitation has been provided. Here again, the outer limit for condonation has been indicated. " , That being so, these appeals deserve to be dismissed which we direct. No costs. N. J. Appeals dismissed. /