LexCOMMNR. OF CUSTOMS, CENTRAL EXCISE, NOIDA versus M/S PUNJAB FIBRES LTD., NOIDA
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[2008] 2 S.C.R. 861 COMMNR. OF CUSTOMS, CENTRAL EXCISE, NOIDA A II. M/S PUNJAB FIBRES LTD., NOIDA (Civil Appeal No. 4647 of 2007) FEBRUARY 14, 2008 B [DR. ARIJIT PASAYAT AND P. SATHASIVAM; JJ.] r'I ... Central Excise Act, 1944 - s. 35-H - Reference application - Delay in filing - Power of High Court to condone the delay - Scope of - Held: High Court does not have the c power to condone the delay in filing reference application since there exist no such provision in s. 35-H. The question which arose for consideration in these appeals was whether the High Court has power to condone the delay in presentation of the reference under D Section 35-H of the Central Excise Act, 1944. Dismissing the appeals, the Court HELD: Section 35-G of the Central Excise Act, 1944 provides for an appeal to the Appellate Tribunal which E 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 F t that there was sufficient cause for not filing the appeal within the prescribed time. Under Section 35-E(3) provision for limitation has been provided. The outer limit for condonation has been indicated. No sue_~ provision for condonation of delay exist in Section'·35-H. The G legislative intent is clear that the Parliament never ~ intended that delay in filing the-reference application under Section 35-H could be. condoned. Thus, in the instant case, the High Court was justified in holding that there was no power for condonation of delay in filing reference 861 . H 862 SUPREME COURT REPORTS [2008] 2 S.C.R. A aJ>plication. [Paras 6, 7 and 9] [863-E-F, H, F-G; 865-E] ~. Mis Singh Enterprises v. Commissioner of Central Excise; Jamshedpur and Ors. 2007 (14) SCALE 610 - relied on. 8 Vinod Gurudas Raikar v. National Insurance Co. Ltd. and Ors. 1991 (4) SCC 333 - referred to. CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4647 of 2007. From the Judgment and Order dated 7.2.2007 of the High C Court of Allahabad in C.E.R.A. No. 6/2004. · • WITH . (CIVIL APPEAL NOS. 4677, 4678 and 5261 of 2007) AND D CIVIL APPEAL NOS. 699-700 of 2006 WITH (CIVIL APPEAL NOS. 3560 of 2006, 4245, 4675 and 4676 of 2007) . E B. Krishna Prasad for the Appellant. ·Su mesh Dhawan for the Respondent. · The Judgment of the Court was delivered by Dr. ARIJIT PASAYAT, J. 1. In all these appeals the question F 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. Undispute"dly, in all these cases th'e reference G 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 H upon which he is served with notice of an order under I ' COMMNR. OF CUSTOMS, CENTRAL EXCISE, NOIDA 863 v. M/S PUNJAB FIBRES LTD., NOIDA [PASAYAT, J.] .... Section 35-C passed on or after the 1st day of July, 1999 A __, (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 accom- panied, where the application is made by the other party, B by a fee of two hundred rupees, apply to the High Court to ,--4 .. 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 12a of the Finance Act. 1999. The High Court dismissed the reference c 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 D --4_ 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 E Section 35-G which provides for an app
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