1. Appeals filed against a matter where a reference under Section 35G(1) of the Central Excises Act was the prescribed remedy. (Para 1 )
Back
Next 
1995 Supreme(SC) 843
SUPREME COURT OF INDIA
B.P.Jeevan Reddy : M.K.Mukherjee
Steel Authority Of India Limited
Versus
Collector Of Central Excise
Case No. : .
Date of Decision : 8/21/95
An appeal is not maintainable if the statute prescribes a specific remedy of seeking a reference under Section 35G(1) of the Central Excises Act. Parties may subsequently seek the correct remedy, potentially claiming exclusion of time under Section 14 of the Limitation Act.
Headnote:(A) Central Excises Act - Section 35G(1) - Limitation Act - Section 14 - Maintainability of appeals - Where the statutory remedy provided is to seek a reference under Section 35G(1) of the Central Excises Act, an appeal filed in lieu of such reference is not maintainable. (Para 1)
(B) Limitation - Section 14 of the Limitation Act - Where a party has pursued a remedy in the wrong forum, it is open to the party to seek the benefit of Section 14 of the Limitation Act to exclude the time spent in such proceedings when filing the correct application. (Paras 2 and 4)
Facts of the case:
Appeals were filed by the assessee against the Revenue. The Revenue raised an objection that the appeals were not maintainable and that the assessee should have sought a reference under Section 35G(1) of the Central Excises Act. The appellant conceded to the correctness of this objection.
Findings of Court:
The appeals are dismissed as not maintainable. However, the assessee is permitted to adopt the remedy provided under Section 35G of the Act and may seek the benefit of Section 14 of the Limitation Act regarding the period of limitation.
Issues: Whether the appeals filed by the assessee were maintainable or whether the assessee was required to seek a reference under Section 35G(1) of the Central Excises Act.
Ratio Decidendi: The court held that the appeals were not maintainable because the prescribed statutory procedure for seeking a reference under Section 35G(1) of the Central Excises Act was not followed.
Result: Appeals dismissed as not maintainable.
Legal Category Hierarchy
Table of Contents
2. Revenue contended the appeals were not maintainable; appellant submitted that appeals were filed within the time prescribed for filing a reference. (Para 1 , 3 )
3. The court noted the appellant's concession on maintainability and observed that the benefit of Section 14 of the Limitation Act could be sought. (Para 1 , 2 )
4. Where a statutory remedy of reference is provided under Section 35G of the Central Excises Act, a direct appeal is not maintainable. (Para 1 )
5. Appeals dismissed as not maintainable; assessee granted four weeks to file a reference application under Section 35G, with the intervening period excluded from limitation. (Para 1 , 4 )
6. Is an appeal maintainable when the statute provides for a reference under Section 35G of the Central Excises Act?
No, if the appropriate legal remedy is a reference under Section 35G(1) of the Central Excises Act, an appeal may be dismissed as not maintainable. (Para 1 )
7. Can a party seek the benefit of Section 14 of the Limitation Act when pursuing a statutory reference after an improper appeal?
Yes, it is open to the appellant to seek the benefit of Section 14 of the Limitation Act in accordance with law regarding the question of limitation. (Para 2 )
8. Can the court exclude the time spent pursuing a non-maintainable appeal when computing the limitation period for a subsequent statutory reference?
Yes, the court may direct that the period between the date of dismissal of the non-maintainable appeal and the filing of the reference application shall not be considered in computing the limitation period. (Para 4 )
(1) WHEN these appeals were taken up for admission, learned Counsel for the Revenue raised an objection that the appeals themselves are not maintainable and that this is a matter where the assessee should have sought reference under Section 35G(1 of the central Excises Act. Learned counsel for the appellant conceded the correctness of this objection. Accordingly, the appeals are dismissed as not maintainable.
(2) IT is, however, open to the assessee to adopt the remedy provided under Section 35G of the Act in accordance with law. So far as the question of limitation is concerned, it will be open to the appellant to seek benefit of Section 14 of the Limitation Act in accordance with law.
(3) LEARNED counsel for the appellants points out that these appeals were filed within sixty days which is also the time prescribed for filing the reference before the tribunal. We do not express any opinion on the correctness of this submission. It is a matter for consideration by the tribunal.
(4) THE reference application may be filed within four weeks from today and if it so filed, the period between this date and date of filing shall not be taken into consideration in computing the period of limitation for filing an application under Section 35G.
