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2003 Supreme(Bom) 700
IN THE HIGH COURT OF BOMBAY
Daga V.C. Devadhar J.P., JJ.
Electrofronts another .... Petitioners.
Versus
Union of India others.... Respondents.
Writ Petition No. 940 of 2003, decided on 2-7-2003.
Advocates appeared :
Tarun Gulati with M.M. Merchant, for petitioner.
H.V. Mehta, i/b. T.C. Kaushik, for respondents.
Headnote:Central Excises and Salt Act, 1944 - Section 35 - Appeal - Right of - Amendment of Section 35 of Act - Effect of - Substantive right of appeal provided by law - Cannot be regarded as mere procedural law - Amendment to Section 35 of Act has no retrospective effect. - Statute of limitation is often classed as procedural statute. But it would be unwise to attribute a prima facie retrospective effect to all statute of limitation. Two classes of cases can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst the person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly, if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different consideration could arise. The cause of action which can be enforced as a very different thing to a cause of action the remedy for which is barred by lapse of time statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantial rights.
The litigant has a substantive right of appeal, law providing that right cannot be said to be mere procedural law. On the canvas of the aforesaid settled principle of law, in the present case, as indicated hereinabove, amendment to Section 35 is not merely procedural but it takes away substantive right of the parties to file appeal once the period of limitation is lost of course subject to right to claim condonation of delay for a specified period, the outer limit of which is provided in the proviso to the said section. Once that outer limit is over the right of appeal is lost. After expiry of the period for appeal right stands extinguished. Court thus holds that the amendment to Section 35 of the Act has no retrospective effect. The appeals preferred by the petitioners were unaffected by change in law as it related to determination of substantive rights of the parties and then same were required to be decided in the light of law of appeal as it existed on the date of order in origin
The Facts :
2. The factual score depicts that on 1st August, 1994, the Central Excise Department issued a show cause notice to the 1st petitioners calling upon them to show cause; why duty amount of Rs. 4,80,788.00 should not be recovered from them on account of change in classification of the items manufactured by it as well as why the seized goods should not be confiscated. Further, petitioner Nos. 1 and 2 were also called upon to show cause why penalty should not be imposed upon them under Rules 173-Q and 209-A of the Central Excise Rules, 1944. The petitioners filed their reply to the show cause notice on 18th February, 1999. The respondent No. 4 after due enquiry confirmed the show cause notice and confiscated seized goods with an option to the petitioners to redeem the same on payment of redemption fine of Rs. 10,000/-. Respondent No. 4 also imposed a fine of Rs. 50,000/- on petitioner No. 1 and Rs. 20,000/- on petitioner No. 2.
3. The petitioners received order passed by respondent No. 4 dated 18th February, 1999 on 20th March 2001. At that time, the statutory period within which the petitioners could file an appeal to respondent No. 3 was three months from the date of receipt of the order, thus, the petitioners could file an appeal on or before 20th June 2001. Further, respondent No. 3 was empowered under the proviso to section 35 of the Central Excise Act, 1944 (the Act for short) to condone the delay in filing an appeal upto a further period of 3 months from the date of order. Placed in plain words delay upto 3 months could be condoned by the Commissioner (Appeals) subject to satisfaction about establishment of sufficient cause for not filing appeal within time.
4. On 11th May, 2001 the Finance Bill 2001 received the Presidents assent and became the Finance Act, 2001. The Finance Act, 2001 by section 127 amended section 35 of the Central Excise Act by reducing the period within which the appeal could be filed, from the order of respondent No. 4 to respondent No. 3. The period came to be reduced from three months to sixty days. Further, the power to condone the delay also came to be restricted for a further period of thirty days compared to the earlier provision providing for three months. In other words, by amendment the period for filing appeals was curtailed to two months; whereas power to condone delay was curtailed to 30 days.
5. On account of some misunderstanding the petitioners could not file appeals against the order of respondent No. 4 dated 18th February, 1999 (received on 20th March, 2001) within the prescribed period of limitation. The appeals were filed on 16th July, 2001 alongwith applications for condonation of delay of 27 days (each) in filing appeals.
6. Respondent No. 3 vide order dated 30th October, 2001 dismissed petitioners appeals without even considering the applications seeking condonation of delay in preferring appeals holding that delay for more than thirty days in filing the appeal cannot be condoned for want of power.
7. Being aggrieved by the above order dated 30th October, 2001 of the respondent No. 3, the petitioners preferred appeals to the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai (the CEGAT for short), the respondent No. 2. Respondent No. 2 by its order dated 16th October, 2001 dismissed the petitioners appeal holding that the reduced period for filing an appeal which came into force on 11th May, 2001 by virtue of amendment to section 35 would apply even to orders
