http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

’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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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.