important point
There is no provision in section 35-H(1), Central Excise Act, 1944 for condonation of delay in filing a reference.

judgment

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.Undisputedly, in all these cases the 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 Ist 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 question of law arising from such order of the Tribunal.”

3.Section 35-H was substituted by Section 128 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 a provision under the Limitation Act, 1963.

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 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 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 limitation has been provided. Here again, the outer limit for condonation has been indicated.

8.Recently in M/s Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and Ors.,1 (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 under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (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.

(2)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 jur