Commissioner of Customs & Central Excise Versus M/s Hongo India (P) Ltd. & Anr.

“Legislative intent must be respected”

Case name: Commissioner of Customs & Central Excise Versus M/s Hongo India (P) Ltd. & Anr.
Case number/Citation: CIVIL APPEAL NO. OF 2009 with CIVIL APPEAL NO. 2009 & CIVIL APPEAL NO. 2009
Court: The Supreme Court of India, Civil Appellate Jurisdiction
Bench: (K.G. BALAKRISHNAN) ……………………………………J. (P. SATHASIVAM) ….…………………………………J. (J.M. PANCHAL)
Decided on: March 27, 2009
Relevant Act/Sections: Section 35 H(1) of the Central Excise Act, 1944; Section 29(2) of the Limitations Act, 1963
  • BRIEF FACTS AND PROCEDURAL HISTORY:
  • 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.
  • 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.
  • ISSUE BEFORE THE COURT:

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?

  • RATIO OF THE COURT:
  • In all three matters, the Commissioner of Customs & Central Excise had approached the High Court by way of reference application beyond the prescribed period of 180 days. The High Court of Allahabad, with reference to the scheme of the Act and in the absence of specific provision for applying Section 5 of the Limitation Act, took note of other provisions i.e., Sections 35, 35B and 35EE, which enable the other authorities to condone the delay if sufficient cause was shown, accordingly, dismissed the reference application filed by the Commissioner of Central Excise on the ground of limitation.
  • The learned counsel for the appellant side argued that the High Court had plenary powers under the Act is competent to consider the delay even after the prescribed period and that in the absence of specific prohibition in the Act for condoning delay particularly in Section 35H in lieu of Section 29(2) of the Limitation Act, Section 5 of the Limitation Act is applicable and the High Court ought to have exercised its power by condoning the delay. He initially contended that since Section 35H speaks about the substantial question of public importance, even the delay, if any, has to be condoned.
  • On the other hand, learned counsel appearing for the respondents supporting the stand taken by the High Court submitted that the Central Excise Act is a self-contained Act and a Code by itself and in the absence of specific provision enabling the High Court to exercise its power by condoning the delay, the High Court is justified in refusing to entertain the reference application of the Excise Department filed beyond the prescribed period.
  • The court examined Section 35H of the Act and observed that except providing a period of 180 days for filing reference application to the High Court, there is no other clause for condoning the delay if reference is made beyond the said prescribed period. In the case of appeal to the Commissioner, Section 35 provides 60 days time and in addition to the same, Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown.
  • The court further observed that 35B provides 90 days time and subsection 5 allows the Appellate Tribunal to condone the delay and 35B gives the Central Government similar power given that sufficient cause for the delay is shown. whereas in the case of appeal to the High Court under Section 35G and reference to the High Court under Section 35H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference. However, there is no further clause empowering the High Court to condone the delay after the period of 180 days.
  • The court made a reference to the case Union of India v. M/s Popular Steele in which the scope of the phrase “but not thereafter” was examined. The court was of the view that to hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result.
  • The court further dwelled into the powers of the High Court under Letter Patents jurisdiction with ref. to Sharda Devi vs. State of Bihar, (2002) 3 SCC 705 holding that while there was no bar to maintainability of appeal under Letter Patents jurisdiction, the scenario was not applicable to this case. It further observed that though the Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to Appellate Tribunal.
  • Also an additional period of 90 days in the case of revision by Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, the Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. The court relied upon Punjab Fibres Ltd., Noida (supra) wherein it was concluded that concluded that “the High Court was justified in holding that there was no power for condonation of delay in filing reference application.
  • The court held that the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. 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. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
  • Addressing the contention that the Section 29 (2) of the Limitations Act must exclude the operation of the usual limitation period, the court held that that would depend upon the law which prescribes such exclusion i.e the Central Exide Act in the present case. The court observed that the scheme of the Central Excise Act, 1944 supports the conclusion that the 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 and that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act.
  • DECISION HELD BY COURT:
  • The court held that the 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.
  • Appeal dismissed.

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