Full Judgment Text
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CASE NO.:
Appeal (civil) 4647 of 2007
PETITIONER:
Commnr. of Customs, Central Excise,Noida
RESPONDENT:
M/s Punjab Fibres Ltd., Noida
DATE OF JUDGMENT: 14/02/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 4647 OF 2007
(With Civil Appeal Nos. 4677, 4678 and 5261 of 2007)
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.
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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. (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 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 the
Indian Limitation Act, 1963 (in short the
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’Limitation Act’) can be availed for condonation
of delay. The first proviso to Section 35 makes
the position clear that the appeal has to be
preferred within three months from the date of
communication to him of the decision or order.
However, if the Commissioner is satisfied that
the appellant was prevented by sufficient
cause from presenting the appeal within the
aforesaid period of 60 days, he can allow it to
be presented within a further period of 30
days. In other words, this clearly shows that
the appeal has to be filed within 60 days but in
terms of the proviso further 30 days time can
be granted by the appellate authority to
entertain the appeal. The proviso to sub-
section (1) of Section 35 makes the position
crystal clear that the appellate authority has
no power to allow the appeal to be presented
beyond the period of 30 days. The language
used makes the position clear that the
legislature intended the appellate authority to
entertain the appeal by condoning delay only
upto 30 days after the expiry of 60 days which
is the normal period for preferring appeal.
Therefore, there is complete exclusion of
Section 5 of the Limitation Act. The
Commissioner and the High Court were
therefore justified in holding that there was no
power to condone the delay after the expiry of
30 days period."
9. Above being the position, the High Court was justified in
holding that there was no power for condonation of delay in
filing reference application.
10. In Vinod Gurudas Raikar v. National Insurance Co. Ltd.
And Ors. (1991 (4) SCC 333) this Court considered the
question regarding condonation of delay.
"6. Even independent of the General Clauses
Act, it is firmly established that unless a new
statute expressly or by necessary implication
says so, it will not be presumed that it deprives
a person of an accrued right. On the other
hand, a law which is procedural in nature, and
does not affect the rights, has to be held to be
retrospectively applicable. The question is
whether the appellant has been deprived of an
accrued right or privilege in the present case.
7. It is true that the appellant earlier could file
an application even more than six months
after the expiry of the period of limitation, but
can this be treated to be a right which the
appellant had acquired. The answer is in the
negative. The claim to compensation which the
appellant was entitled to, by reason of the
accident was certainly enforceable as a right.
So far the period of limitation for commencing
a legal proceeding is concerned, it is adjectival
in nature, and has to be governed by the new
Act \027 subject to two conditions. If under the
repealing Act the remedy suddenly stands
barred as a result of a shorter period of
limitation, the same cannot be held to govern
the case, otherwise the result will be to deprive
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the suitor of an accrued right. The second
exception is where the new enactment leaves
the claimant with such a short period for
commencing the legal proceeding so as to
make it unpractical for him to avail of the
remedy. This principle has been followed by
this Court in many cases and by way of
illustration we would like to mention New
India Insurance Co. Ltd. v. Smt Shanti Misra
(1975 (2) SCC 840). The husband of the
respondent in that case died in an accident in
1966. A period of two years was available to
the respondent for instituting a suit for
recovery of damages. In March, 1967 the
Claims Tribunal under Section 110 of the
Motor Vehicles Act, 1939 was constituted,
barring the jurisdiction of the civil court and
prescribed 60 days as the period of limitation.
The respondent filed the application in July,
1967. It was held that not having filed a suit
before March, 1967 the only remedy of the
respondent was by way of an application
before the Tribunal. So far the period of
limitation was concerned, it was observed that
a new law of limitation providing for a shorter
period cannot certainly extinguish a vested
right of action. In view of the change of the law
it was held that the application could be filed
within a reasonable time after the constitution
of the Tribunal; and, that the time of about
four months taken by the respondent in
approaching the Tribunal after its constitution,
could be held to be either reasonable time or
the delay of about two months could be
condoned under the proviso to Section 110-
A(3).
8. The learned counsel strenuously contended
that the present case must be considered as
one where an accrued right has been affected,
because the option to move an application for
condonation of delay belatedly filed should be
treated as a right. This cannot be accepted.
There is a vital difference between an
application claiming compensation and a
prayer to condone the delay in filing such an
application. Liberty to apply for a right is not
in itself an accrued right or privilege. To
illustrate the point, we may refer to some
cases.
Xx xx xx
13. In the case before us the period of
limitation for lodging the claim under the old
as well as the new Act was same six months
which expired three weeks after coming in
force of the new Act. It was open to the
appellant to file his claim within this period or
even later by July 22, 1989 with a prayer to
condone the delay. His right to claim
compensation was not affected at all by the
substitution of one Act with another. Since the
period of limitation remained the same there
was no question of the appellant being taken
by surprise. So far the question of condonation
of six months delay was concerned, there was
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no change in the position under the new Act.
In this background the appellant’s further
default has to be considered. If in a given case
the accident had taken place more than a year
before the new Act coming in force and the
claimant had actually filed his petition while
the old Act was in force but after a period of
one year, the position could be different.
Having actually initiated the proceeding when
the old Act covered the field a claimant could
say that his right which had accrued on filing
of the petition could not be taken away. The
present case is different. The right or privilege
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
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.