REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.               OF 2009 (Arising out of S.L.P. (C) No. 14467 of 2007)

Commissioner of Customs & Central Excise          ....  Appellant(s)

Versus

M/s Hongo India (P) Ltd. & Anr.           ....  Respondent(s)

WITH

CIVIL APPEAL NO.                     2009 (Arising out of S.L.P. (C) No.18999 of 2007)

 &

CIVIL APPEAL NO.                      2009 (Arising out of S.L.P. (C) No.20703 of 2007)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.

2) In  all  these  appeals,  the  question  for  consideration  is

whether the High Court  has power to condone the delay in

1

presentation  of  the  reference  application  under  unamended

Section 35 H(1) of  the Central  Excise Act, 1944 (hereinafter

referred  to  as  “the  Act”)  beyond  the  prescribed  period  by

applying Section 5 of the Limitation Act, 1963.  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.  After finding that under Section 35H of the

unamended  Act  (before  enactment  of  Act  49/2005),  with

regard to application for reference, the High Court exercises

its  advisory  jurisdiction  in  a  case  where  the  substantial

question  of  law of  public  importance  arise,  the  said  Bench

directed the matter to be heard by larger Bench.  In this way,

all the above mentioned matters arising from the judgments of

the Allahabad High Court on identical issue posted before this

Bench for  determining  the  question,  namely,  “whether  the

High Court in the reference application under Section 35H

(1) of the unamended Act, has power under Section 5 of

2

the Limitation Act, 1963 to condone the delay beyond the

period  prescribed  under  the  main  statute  i.e.,  Central

Excise Act.”

3) 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.

4) Chapter  VI-A  of  the  Act  deals  with  Appeals.   As  per

Section  35,  any  person  aggrieved  by  any  decision  or  order

passed by a Central Excise Officer may file an appeal to the

Commissioner  of  Central  Excise  (Appeals)  within sixty  days

from the date of the communication to him of such decision or

order.   Proviso to sub-section (1)  enables the Commissioner

(Appeals), 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.   

3

5) Section  35B  speaks  about  appeals  to  the  Appellate

Tribunal.   Any person aggrieved by certain decisions/orders

passed  by  the  Commissioner  of  Central  Excise  or

Commissioner  (Appeals),  may  prefer  an  appeal  to  the

Appellate  Tribunal  within  three  months  from  the  date  on

which  the  order  sought  to  be  appealed  against  is

communicated  to  the  officer  concerned  or  the  other  party.

Sub-section  (5)  enables  the  Appellate  Tribunal  to  condone

delay even beyond the prescribed period if there was sufficient

cause for not presenting it within that period.

6) Section 35EE provides revision by Central Government.

As per sub-section (2),  an application under  sub-section (1)

shall  be  made  within  three  months  from  the  date  of  the

communication.  However, proviso to sub-section (2) enables

the  revisional  authority  to  condone  the  delay  for  a  further

period of ninety days, if sufficient cause is shown.

7) Unamended  Section  35G  speaks  about  Appeal  to  the

High Court.  Sub-section 2(a) enables the aggrieved person to

file an appeal to the High Court within 180 days from the date

on  which  the  order  appealed  against  is  received  by  the

Commissioner of Central Excise or the other party.  There is

4

no provision to condone the delay in filing appeal beyond the

prescribed period of 180 days.  

8) Unamended  Section  35H  speaks  about  reference

application  to  the  High  Court.   As  per  sub-section  (1),  the

Commissioner of Central Excise or other party within a period

of 180 days of the date upon which he is served with notice of

an order under Section 35C direct the Tribunal to refer to the

High Court any question of law arising from such order of the

Tribunal.   Here again as per sub-section (1),  application for

reference is to be made to the High Court within 180 days and

there is no provision to extend the period of limitation for filing

the application to the High Court beyond the said period and

to condone the delay.     

9) In these three appeals, we are concerned with “reference

application” made to the High Court under Section 35H (1) of

the  Act  before  amendment  of  Central  Excise  Act  by  Act

49/2005 (w.e.f. 28.12.2005) by which several provisions of the

Act were omitted including Section 35H.  However, in view of

the reference made it is but proper to consider the question

referred  before  us.   Admittedly  in  all  these  matters,  the

Commissioner of Customs & Central  Excise approached the

5

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.

10) Now let us consider whether Section 5 of the Limitation

Act is applicable in respect of reference application filed in the

High Court under Section 35H of the unamended Act.        

11) Mr.  Parag  P.  Tripathi,  learned  Additional  Solicitor

General, appearing for the appellant contended that in view of

the  fact  that  the  High  Court  has  all  inherent  and  plenary

power,  is  competent  to  consider  the  delay  even  after  the

prescribed period under the Act.  He further contended 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

6

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.  He also contended that in the light of the

scheme of the Act and of the fact that sufficient period, i.e,

180 days, has been provided for the Commissioner as well as

the other party for making reference to the High Court,  the

legislative intent has to be respected.

12) Article  214 of  the  Constitution of  India  makes  it  clear

that there shall be a High Court for each State and Art. 215

states that every High Court shall  be a court of record and

shall  have all the powers including the power to punish for

contempt of itself.  Though we have adverted to Section 35H in

the earlier part of our order, it is better to extract sub-section

7

(1)  which  is  relevant  and  we  are  concerned  with  in  these

appeals :

“35H.  Application to High Court –  (1) 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 35C passed before the 1st day of July, 2003 (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 purposes 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.”

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.  We have already pointed out that 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.  Likewise,  Section 35B provides 90 days time for

filing  appeal  to  the  Appellate  Tribunal  and  sub-section  (5)

therein enables the Appellate Tribunal to condone the delay

irrespective  of  the  number  of  days,  if  sufficient  cause  is

shown.  Likewise, Section 35EE which provides 90 days time

8

for filing revision by the Central Government and, proviso to

the same enables the revisional authority to condone the delay

for a further period of 90 days, if sufficient cause 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.  

13) Reliance was placed to Section 5 and Section 29(2) of the

Limitation Act which read as under:

“5.  Extension of prescribed period in certain cases.  - Any appeal  or  any  application,  other  than  an application under any of the provisions of Order XXI of the Code of Civil Procedure,  1908,  may  be  admitted  after  the  prescribed period, if  the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”    

“29.  Savings.- (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).

(2)  Where any special  or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to  which,  they are  not  expressly  excluded by  such special or local law.”

9

14) In  this  background,  let  us  examine  the  contentions

raised  by  both  sides.   Learned  Additional  Solicitor  General

relying on the judgment of this Court in  Union of India vs.

M/s     Popular Construction Co.,   (2001) 8 SCC 470 contended

that in the absence of specific exclusion of the Limitation Act

in  the  Central  Excise  Act,  in  lieu  of  Section  29(2)  of  the

Limitation Act, Section 5 of the same is applicable even in the

case  of  reference  application  to  the  High  Court.   The  said

decision  arose  under  the  Arbitration  and  Conciliation  Act,

1996.  The question which arose for consideration in that case

was  whether  provisions  of  Section  5  of  the  Limitation  Act,

1963 are  applicable  to an application challenging an award

under  Section  34  of  the  Arbitration  and  Conciliation  Act,

1996.  In that case, award was filed by the appellant-Union of

India in the Bombay High Court on 29.3.1999.  The appellant

filed an application challenging the award on 19.4.1999 under

Section 30 read with Section 16 of the Arbitration Act, 1940.

Subsequently, the application was amended by inserting the

words  “Arbitration  and  Conciliation  Act,  1996”  in  place  of

“Arbitration Act, 1940”.  The application was dismissed by the

10

learned single Judge on 26.10.1999 on the ground that it was

barred by limitation under Section 34 of the 1996 Act.  The

Division Bench rejected the appeal and upheld the findings of

the learned single Judge.  The said order was challenged in

this Court.  Though learned counsel for the appellant relied on

the said decision in support of his claim, on perusal  of the

same, we are unable to concur with him.  In paragraph 12,

this Court held that as far as the language of Section 34 of the

1996 Act is concerned, the crucial words used in the proviso

to  sub-section  (3)  are  “but  not  thereafter”  and  this  phrase

would amount to an express exclusion within the meaning of

Section 29(2) of the Limitation Act, and would, therefore, bar

the application of Section 5 of that Act.  Parliament did not

need to go further.  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.   Ultimately,  this  Court  dismissed  the

appeal filed by the Union of India and confirmed the order of

the High Court holding that the application filed to set aside

the award is barred by limitation.

11

14) The next decision relied on by the learned ASG was in

the case of  Sharda Devi  vs.  State of Bihar, (2002) 3 SCC

705.  This relates to an appeal before the Letters Patent Bench

in the High Court against judgment of Single Judge.  While

considering Section 54 of the Land Acquisition Act, 1894, this

Court held as under:  

“9. A Letters Patent  is  the charter  under which the High Court is established. The powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. Thus when a Letters Patent grants to the High Court  a  power  of  appeal,  against  a  judgment  of  a  Single Judge,  the  right  to  entertain  the  appeal  would  not  get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent. 10. The question which thus arises is whether Section 54 of the said Act excludes an appeal under the Letters Patent. Section 54 of the said Act reads as under:

“54. Appeals in proceedings before Court.—Subject to the provisions of the Code of Civil Procedure, 1908, applicable to  appeals  from  original  decrees,  and  notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal  shall  lie  to  the  Supreme  Court  subject  to  the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order 45 thereof.”

It was argued that Section 54 of the said Act contains a non-

obstante  clause  containing  the words  “an appeal  shall  only

lie”.  After finding that Letters Patent is not an enactment, it is

the charter of the High Court, this Court found that a non-

12

obstante clause of this nature cannot cover the charter of the

High Court.  By pointing out Section 54 it was contended that

the said Act provides for only one statutory appeal to the High

Court and then a further appeal to this Court.  In other words,

it was submitted that on a plain reading of Section 54, it is

clear  that  a  Letters  Patent  Appeal  would  not  lie  against  a

judgment passed by a Single Judge of the High Court in an

appeal  under  Section  54.   On  the  other  hand,  counsel

appearing for the other side submitted that a Letters Patent

Appeal would lie.  Accepting the said contention, this Court

concluded that Section 26 of the said Act provides that every

award shall be a decree and the statement of grounds of every

award shall be a judgment.  By virtue of the Letters Patent “an

appeal”  against  the  judgment  of  a  Single  Judge  of  a  High

Court would lie to a Division Bench.  Section 54 of the said

Act does not exclude an appeal under the Letters Patent.  It

was clarified that the word “only” occurring immediately after

the non-obstante clause in Section 54 refers to the forum of

appeal.  In other words, it provides that the appeal will be to

the High Court and not to any other court and the term “an

appeal”  does  not  restrict  it  to  only  one  appeal  in  the  High

13

Court.  It was explained that the term “an appeal” would take

within  its  sweep  even  a  Letters  Patent  Appeal.   Though

learned ASG heavily relied on the above three-Judge Bench

decision, we are of the view that the said decision deals with

Letters Patent power of the High Court.  There is no dispute

that the powers given to a High Court under the Letters Patent

are akin to the constitutional powers of the High Court.  In

such circumstances, when a Letters Patent grants to the High

Court a power of appeal, against a judgment of a Single Judge,

the  right  to  entertain  the  appeal  would  not  get  excluded

unless the statutory enactment concerned excludes an appeal

under  the  Letters  Patent.   Inasmuch  as  the  Letters  Patent

enables the High Court that the judgment of a Single Judge

would lie to a Division Bench and of the fact that Section 54 of

the Land Acquisition Act does not exclude an appeal  under

the Letters Patent, the said decision is right in holding that

under Section 54 there is no bar as to the maintainability of a

Letters  Patent Appeal.   While there is no dispute about the

power of the High Court under the Letters Patent jurisdiction,

we are of the view that the said analogy is not applicable to

the cases on hand.   

14

16) The  other  decision  relied  on  by  the  counsel  for  the

appellant  is  M.V.  Elisabeth  and  Others vs.  Harwan

Investment  and  Trading  Pvt.  Ltd.,  Hanoekar  House,

Swatontapeth,  Vasco-De-Gama,  Goa,  1993  Supp  (2)  SCC

433.   The  learned  ASG  heavily  relied  on  the  following

observations:

“66. The High Courts in India are superior courts of record. They  have  original  and  appellate  jurisdiction.  They  have inherent and plenary powers. Unless expressly or impliedly barred,  and  subject  to  the  appellate  or  discretionary jurisdiction of  this Court,  the High Courts have unlimited jurisdiction,  including  the  jurisdiction  to  determine  their own powers…..”

Here again, there is no dispute about the above proposition.

The  High  Courts  in  India  are  having  inherent  and  plenary

powers  and  as  a  Court  of  Record  the  High  Courts  have

unlimited jurisdiction including the jurisdiction to determine

their  own  powers.   However,  the  said  principle  has  to  be

decided with the specific provisions in the enactment and in

the light of the scheme of the Act, particularly in this case,

Sections  35,  35B,  35EE,  35G  and  35H  of  the  unamended

Central  Excise  Act, it would not be possible to hold that in

spite  of  the  above-mentioned  statutory  provisions,  the  High

15

Court  is  free  to  entertain  reference  application  even  after

expiry of the prescribed period of 180 days.  

17) The other decision relied on is  M.M. Thomas vs.  State

of Kerala and Another, (2000) 1 SCC 666.  This case arose

out of the vesting of all private forests in the State of Kerala on

the  appointed  day  (10.05.1971)  under  the  Kerala  Private

Forests (Vesting and Assignment) Act, 1971.  It is true that in

para 14 it was held that the High Court as a court of record,

as  envisaged  in  Article  215  of  the  Constitution,  must  have

inherent  powers  to  correct  the  records.  A  court  of  record

envelops all such powers whose acts and proceedings are to

be enrolled in a perpetual memorial and testimony. A court of

record  is  undoubtedly  a  superior  court  which  is  itself

competent to determine the scope of its jurisdiction. The High

Court, as a court of record, has a duty to itself to keep all its

records correctly and in accordance with law. Hence, the High

Court has not only power, but a duty to correct any apparent

error in respect of any order passed by it.  This is the plenary

power of the High Court.  In para 17 of the abovementioned

decision, it was held :

“17. If such power of correcting its own record is denied to the  High  Court,  when  it  notices  the  apparent  errors  its

16

consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the  plenary  powers  of  the  High  Court  would  include  the power of review relating to errors apparent on the face of the record.”

There is no doubt that the High Court possess all powers in

order  to  correct  the  errors  apparent  on  the  face  of  record.

While  accepting  the  above  proposition,  in  the  light  of  the

scheme of the Act, we are of the view that the said decision is

also not helpful to the stand taken by the appellant.  

18) In  the  earlier  part  of  our  order,  we  have  adverted  to

Chapter VIA of the Act which provides appeals and revisions

to various authorities.  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.  In this regard, it is useful

17

to refer to a recent decision of this Court in  Punjab Fibres

Ltd.,  Noida  (supra).   Commissioner  of  Customs,  Central

Excise, Noida is the appellant in this case.  While considering

the very same question, namely, whether the High Court has

power to condone the delay in presentation of the reference

under Section 35H(1) of the Act, the two-Judge Bench taking

note  of  the  said  provision  and  the  other  related  provisions

following  Singh Enterprises vs.  Commissioner  of  Central

Excise,  Jamshedpur  and  Others, (2008)  3  SCC  70

concluded that “the High Court was justified in holding that

there was no power for condonation of delay in filing reference

application.”

19) As pointed out earlier, the language used in Sections 35,

35B, 35EE, 35G and 35H makes the position clear that an

appeal and reference to the High Court should be made within

180 days only from the date of communication of the decision

or  order.   In  other  words,  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

18

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.  Even otherwise, for filing an appeal to the

Commissioner,  and  to  the  Appellate  Tribunal  as  well  as

revision  to  the  Central  Government,  the  legislature  has

provided 60 days and 90 days respectively, on the other hand,

for  filing  an appeal  and  reference  to  the  High Court  larger

period  of  180  days  has  been  provided  with  to  enable  the

Commissioner and the other party to avail the same.  We are

of  the  view  that  the  legislature  provided  sufficient  time,

namely, 180 days for filing reference to the High Court which

is more than the period prescribed for an appeal and revision.  

20) Though, an argument was raised based on Section 29 of

the Limitation Act, even assuming that Section 29(2) would be

attracted what we have to determine is whether the provisions

of this section are expressly excluded in the case of reference

to  High Court.   It  was contended  before  us that  the words

“expressly  excluded”  would  mean  that  there  must  be  an

19

express  reference  made  in  the  special  or  local  law  to  the

specific provisions of the Limitation Act of which the operation

is to be excluded.  In this regard, we have to see the scheme of

the special law here in this case is Central Excise Act.  The

nature  of  the  remedy  provided  therein  are  such  that  the

legislature intended it to be a complete Code by itself which

alone should govern the several matters provided by it.  If, on

an examination of the relevant provisions, it is clear that the

provisions of the Limitation Act are necessarily excluded, then

the  benefits  conferred  therein  cannot  be  called  in  aid  to

supplement the provisions of the Act.  In our considered view,

that even in a case where the special law does not exclude the

provisions  of  Sections  4  to  24  of  the  Limitation  Act  by  an

express reference, it would nonetheless be open to the court to

examine  whether  and  to  what  extent,  the  nature  of  those

provisions or the nature of the subject-matter and scheme of

the special law exclude their operation.  In other words, the

applicability of the provisions of the Limitation Act, therefore,

to be judged not from the terms of the Limitation Act but by

the provisions of  the Central  Excise  Act  relating to filing of

reference application to the High Court.  The scheme of the

20

Central Excise Act, 1944 support 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.  It is well settled law 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.  

21) In  the light  of  the  above  discussion,  we  hold  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.   

22) In view of the above conclusion, we confirm the decision

of  the  High  Court.  Hence,  all  the  appeals  are  accordingly

dismissed.  No costs.                

…….…….……………………CJI.                                                    (K.G. BALAKRISHNAN)

...…………………………………J.  (P. SATHASIVAM)

....…………………………………J.

21

 (J.M. PANCHAL)                    NEW DELHI; MARCH 27, 2009.     

22