Back
2009(3) Supreme 120
SUPREME COURT OF INDIA
K.G. Balakrishnan, CJI., P. Sathasivam and J.M. Panchal, JJ.
Commissioner of Customs & Central Excise — Appellant(s)
versus
M/s Hongo India (P) Ltd. & Anr. — Respondent(s)
Civil Appeal No. 1939 of 2009
(Arising out of S.L.P. (C) No. 14467 of 2007)
with S.L.P. (C) No.18999 of 2007 and S.L.P. (C) No.20703 of 2007)
Decided on : 27-03-2009
(b) Central Excise Act, 1944 – Section 35 H(1) r/w section 5, Limitation Act, 1963 – In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act – Applicability of the provisions of the Limitation Act should be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court – Time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. (Paras 19 and 20)
(2008) 3 SCC 73; (2008)3 SCC 70 – Relied upon.
(2001) 8 SCC 470; (2002) 3 SCC 705; 1993 Supp (2) SCC 433; (2000) 1 SCC 666 – Distinguished.
Facts of the case :
1. In all these appeals, the question for consideration is whether the High Court has power to condone the delay in presentation of the reference application under unamended Section 35 H(1) of the Central Excise Act, 1944 beyond the prescribed period by applying Section 5 of the Limitation Act, 1963.
2. In all these three matters, Commissioner of Customs & Central Excise approached the High Court of Allahabad by way of reference application under Section 35 H(1) of the unamended Act beyond the prescribed period as provided in the same. The High Court relied on earlier orders and finding that it has no power to condone the delay in filing the reference application under the said provision, dismissed the reference application as barred by limitation.
Finding of the Court :
High Court has no power to condone the delay in filing the “reference application” filed by the Commissioner under unamended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation.
Result : Appeal dismissed.
Key Points: - High Court has no power to condone delay beyond 180 days for reference applications under unamended Section 35H(1) (absolute time limit) (!) - Central Excise Act is a self-contained code; applicability of Section 5 Limitation Act to 35H(1) reference filings is restricted; time limit is absolute and not extendable (!) (!) - 180-day period for reference to High Court is a distinct, non-extendable limit, unlike other sections (e.g., 60/30 days for appeals with condonation) (!) (!) (!) - Parliament provided condonation provisions for appeals and revisions (Sections 35, 35B, 35EE) but not for Section 35G/35H references; High Court jurisdiction to condone is limited by the Act’s scheme (!) (!) (!) - Earlier judgments cited (Punjab Fibres Ltd., Noida; Singh Enterprises) discussed similar limits but are distinguished in applying to 35H(1) refere nces (!) (!)
JUDGMENT
P. Sathasivam, J.—
1. Leave granted.
2. In all these appeals, the question for consideration is whether the High Court has power to condone the delay in presentation of the reference application under unamended Section 35 H(1) of the Central Excise Act, 1944 (hereinafter referred to as “the Act”) beyond the prescribed period by applying Section 5 of the Limitation Act, 1963. When S.L.P.(c) No. 14467 of 2007 came up for hearing on 4.12.2008, a two-Judge Bench, after noticing the decision in Commissioner of Customs, Central Excise, Noida vs. Punjab Fibres Ltd., Noida (2008) 3 SCC 73, expressed doubt about the said judgment with regard to the jurisdiction of the High Court in the matter of condoning delay beyond the prescribed period under the Act. After finding that under Section 35H of the unamended Act (before enactment of Act 49/2005), with regard to application for reference, the High Court exercises its advisory jurisdiction in a case where the substantial question of law of public importance arise, the said Bench directed the matter to be heard by larger Bench. In this way, all the above mentioned matters arising from the judgments of the Allahabad High Court on identical issue posted before this Bench for determining the question, namely, “whether the High Court in the reference application under Section 35H(1) of the unamended Act, has power under Section 5 of the Limitation Act, 1963 to condone the delay beyond the period prescribed under the main statute i.e., Central Excise Act.”
3. In all these three matters, Commissioner of Customs & Central Excise approached the High Court of Allahabad by way of reference application under Section 35 H(1) of the unamended Act beyond the prescribed period as provided in the same. The High Court relied on earlier orders and finding that it has no power to condone the delay in filing the reference application under the said provision, dismissed the reference application as barred by limitation.
4. Chapter VI-A of the Act deals with Appeals. As per Section 35, any person aggrieved by any decision or order passed by a Central Excise Officer may file an appeal to the Commissioner of Central Excise (Appeals) within sixty days from the date of the communication to him of such decision or order. Proviso to sub-section (1) enables the Commissioner (Appeals), 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.
5. Section 35B speaks about appeals to the Appellate Tribunal. Any person aggrieved by certain decisions/orders passed by the Commissioner of Central Excise or Commissioner (Appeals), may prefer an appeal to the Appellate Tribunal within three months from the date on which the order sought to be appealed against is communicated to the officer concerned or the other party. Sub-section (5) enables the Appellate Tribunal to condone delay even beyond the prescribed period if there was sufficient cause for not presenting it within that period.
6. Section 35EE provides revision by Central Government. As per sub-section (2), an application under sub-section (1) shall be made within three months from the date of the communication. However, proviso to sub-section (2) enables the revisional authority to condone the delay for a further period of ninety days, if sufficient cause is shown.
7. Unamended Section 35G speaks about Appeal to the High Court. Sub-section 2(a) enables the aggrieved person to file an appeal to the High Court within 180 days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party. There is no provision to condone the delay in filing appeal beyond the prescribed period of 180 days.
8. Unamended Section 35H speaks about reference application to the High Court. As per sub-section (1), the Commissioner of Central Excise or other party within a period of 180
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
