Holding

The High Court has no power to condone delay in filing a reference application under Section 35‑H of the Central Excise Act, 1944 as the statute provides no such provision.

Summary

The appeals concerned whether a High Court could condone a delay in filing a reference application under Section 35‑H of the Central Excise Act, 1944. The reference applications were filed after the statutory period of 180 days. The Court examined the provisions of Sections 35‑G, 35‑E(3) and the lack of any condonation clause in Section 35‑H, and considered whether the Limitation Act, 1963 could fill the gap. Relying on the legislative scheme of the Central Excise Act and precedents such as Mis Singh Enterprises and Vinod Gurudas Raikar, the Court held that Parliament never intended to allow condonation of delay under Section 35‑H. Consequently, the High Court was correct in refusing to condone the delay, and the appeals were dismissed.

Issues considered

Does the High Court have power to condone delay in filing a reference application under Section 35‑H of the Central Excise Act, 1944?
Can the Limitation Act, 1963 be invoked to condone such delay in the absence of a specific provision?
What is the legislative intent behind Sections 35‑G, 35‑E(3) and 35‑H regarding limitation and condonation?

Legislation cited

Central Excise Act, 1944s. 35-E(3), s. 35-G, s. 35-H
Limitation Act, 1963s. 5

Subjects

Central Excise ActSection 35-Hcondonation of delaylimitation periodreference applicationstatutory interpretationHigh Court jurisdiction

Judgment

[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
legislative intent is clear that the Parliament never G
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.
Vinod Gurudas Raikar v. National Insurance Co. Ltd. and
8
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. ·
I
• 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
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 appeal to the AF>pellate
Tribunal which specifically says that it has to be within three
months from the date on which the impugned order is comm uni-
cated. But proviso to Section 35-G permits the Appellate Tribunal
to allow the appeal even after the aforesaid limitation prescribed
F
t 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. G
'" \ 7. It is also to be noted that under Section 35-E(3) provision
for li~itation has been provided. Here again, the outer limit for
condonation has been indicated.
8. Recently in Mis Singh Enterprises v. Commissioner of H
\ .

864 SUPREME COURT REPORTS [2008] 2 S.C.R.

A Central Excise, Jamshedpurand 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:
B
"35. APPEALS TO COMMISSIONER (APPEALS).
(1) Any person aggrieved by any decision or order passed ~-Jo..,
under this Act by a Central Excise Officer, lower in rank
than a Commissioner of Central Excise, may appeal to
c the Commissioner of CentrakExcise (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
D 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.
(i2) Every appeal under this section shall be in the prescri-
E bed 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
F 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
G the prayer for condonation can be accepted is statutorily
provided. It was submitted that the logic of Section 5 of 'i ,
the Indian Limitation Act, 1963 (in short the 'Limitation
Act') can be availed for condonation of delay. The first
proviso to Section 35 makes the position clear that the
H appeal hast<? be preferred within three months from the
...,......
-/
r COMMNR. OF CUSTOMS, CENTRAL EXCISE, NOIDA 865
v. MIS PUNJAB FIBRES LTD., NOIDA [PASAYAT, J.]
date of communication to him of the decision or order. A
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 B
filed within 60 days but in terms of the proviso further 30
days time can be granted by the appellate authority to
.·C
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
c
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. D
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
E
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. F
t
"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 G

- t
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.
H
866 SUPREME COURT REPORTS [2008] 2 S.C.R.

A 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
B 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 - subject to two
conditions. If under the repealing Act the remedy suddenly ·
c 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 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 mal<e it unpractical for him to
D
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
E period of two years was available to the respondent for.
instituting a suit for recovery of damages. In Mar~h. 1967
the Claims Tribunal under Section 11 O of the Motor
Vehicles Act, 1939 was constituted, barring the jurisdiction
of the civil court and prescribed 60 days as the period of
F limitation. The respondent filed 1 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, itwas observed that ct new law
G 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
Tribun.al; and, that the time of about four months taken by
H the respondent in approaching the Tribunal. after its
,
.-
r
867
.
COMMNR. OF CUSTOMS, CENTRAL EXCISE, NOIDA
v. M/S PUNJAB FIBRES LTD., NOIDA [PASAYAT, J.]

constitution, could be held to be either: reasonable time or A
the delay of about two months could be condoned under
--"
the proviso to Section 11 O-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 8
.-+. 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 c
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 D
~ the claim under the old as well as the new Act was sarrie
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 E
--··" compensation was .not ~ffected at all by the substitution of
one Act with another. Since the period of limitation
remained the same tnere was no question of the appellant
being taken by surprise. So far the question of condonation
t of six months delay was concerned, there was no change F
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
G
after a period of one year, the position could be different.
-t 't
Having actually initiated the proceeding when the old Act
I 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
H
868 SUPREME COURT REPORTS [2008] 2 S.C.R.

A 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
B present case the occasion to take the benefit of the
provision for condonation of delay in filing the claim arose
• 1--,
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
c • 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
D
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."

E 11. Above being the position, the appeals are dismissed
without any order as to costs.
CIVILAPPELLATE JURISDICTION: Civil Appeal Nos. 699-
700 of 2006.

F WITH 1

~
Civil Appeal Nos. 3560 of 2006, 4245, 4675 and 4676 of
2007.
Dr. ARIJIT PASAYAT, J. 1. In these appeals, the only
G question that arises for consideration is whether then~ was power
for condonation of delay in seeking a reference under Section
35-H of the Central Excise Act, 1944. By judgment delivered
separately in Civil Appeal No. 4647 of 2007 we held that this is
not permissible. It was inter alia held as follows:
H "At this juncture, it would be appropriate to take note of.
I

t
COMMNR. OF CUSTOMS, CENTRAL EXCISE, NOIDA 869
v. MIS PUNJAB FIBRES LTD., NOIDA [PASAYAT, J.]
Section 35-8(3) which provides for an appeal to the Appellate A
Tribunal which specifically says that it has to be within three
. months from the date on which the impugned order is
communicated. But Sub-Section (5) of Section 35-8 permits
• the Appellate Tribunal to admit an appeal even after the
afores§lid period of limitation prescribed in Sub-Section B
(3)expired if the Tribunal is satisfied that there was sufficient
cause for not filing the appeal within the prescribed time. Similar
is the position for cross-dejection under Sub-Section (4). No
such provision for condonation of delay exists in Section 35-H
(1 ). In other words, the legislative intent is clear that the c
Parliament never inten,ded that delay in filing the reference
application under Section 35-H (1) could be condoned.
Ii 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." ,D
That being so, these appeals deserve to be dismissed
which we direct. No costs.
N.J.
/
Appeals dismissed.
E