Customs & Central Excise Vs. M/S Hongo India (P) Ltd.& ANR.  INSC
2086 (4 December 2008)
SUPREME COURT OF
INDIA RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil)
No(s).14467/2007 (From the judgement and order dated 07/02/2007 in CERA
No.14/2003 of the HIGH COURT OF JUDICATURE AT ALLAHABAD) COMMISSIONER OF
CUSTOMS & CENTRAL EXCISE Petitioner(s) VERSUS M/S HONGO INDIA(P) LTD.&
ANR. Respondent(s) (With prayer for interim relief and office report) (FOR FINAL
DISPOSAL) Date: 04/12/2008 This Petition was called on for hearing today.
HON'BLE MR. JUSTICE
S.H. KAPADIA HON'BLE MR. JUSTICE AFTAB ALAM For Petitioner(s) Mr. Amey
Mr. Kunal Bahri, Adv.
Mr. Kul Bharat, Adv.
Mrs. Anil Katiyar,
Mr. B. Krishna
For Respondent(s) Mr.
Alok Yadav, Adv.
Mr. M.P. Devanath,
UPON hearing counsel
the Court made the following ORDER A short question which arises for
determination in this Special Leave Petition is: whether the High Court was
entitled to condone the delay of 16 days in filing the Reference Application by
the Commissioner under Section 35H(1) of the Central Excise Act, 1944? The High
Court came to the conclusion, vide its impugned judgment, that it has no power to
condone the delay as there is no provision in the 1944 Act to exclude impliedly
or expressly the application of Section 29(2) of the Limitation Act.
appearing on behalf of the Revenue contended that in this case there was a
delay in making the Reference Application under Section 35H(1) of the 1944 Act.
He further contended that under Section 35H, since the Reference Application
lay to the High Court, the said Court had inherent jurisdiction to condone the
delay and the analogy drawn by the impugned judgment to Section 35, which
refers to the power of the Commissioner under the Act, would not be proper
particularly when the jurisdiction of the High Court cannot be compared with
the statutory authority of the Commissioner under Section 35 of the 1944 Act.
At the very outset,
it may be stated that in the case of Commissioner of 337, a Division Bench of
this Court has opined in a similar case that the High Court has no power to
condone the delay in the presentation of the Reference Application under
Section 35H(1) of the 1944 Act. In coming to the said conclusion, it has been
held that Section 5 of the Limitation Act would not apply.
In this connection,
reliance was placed on the provisions of Section 35 (which refers to Appeals to
the Commissioner under the 1944 Act). Further, it has been held that vested
rights accrue in favour of the assessee and, consequently, a strict view of the
period of limitation prescribed under the 1944 Act should be applied.
Consequently, it has
been held that the High Court had no authority to condone the delay in the
filing of the Reference Application under Section 35H(1) of the 1944 Act.
With respect, we have
doubts about the correctness of the judgment in the case of Punjab Fibres Ltd.
(supra). Firstly, it may be noted that we are concerned with the jurisdiction
of the High Court and not the authority of the Commissioner to condone the
delay. The Reference Application was required to be made by the Commissioner to
the High Court. It was not required to be made to the authority under the Act.
The powers of the High Court were not circumscribed by the statutory
provisions. The power of the High Court to condone the delay cannot be
circumscribed by the provisions of Section 35.
Secondly, in this
case, we are concerned with the scope of Section 35H and not with Section 35 of
the 1944 Act. Under Section 35H, on an application for reference, the High
Court exercises its advisory jurisdiction in a case where it is of the opinion
that the substantial question of law of public importance arises.
Therefore, in such a
case, there is no question of a vested right accruing in favour of either
For the afore-stated
reasons, we direct the Office to keep this matter before the Hon'ble the Chief
Justice for appropriate directions referring this matter to a larger Bench of
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