Commissioner of
Customs & Central Excise Vs. M/S Hongo India(P) Ltd.& ANR. [2009] INSC
634 (27 March 2009)
Judgment
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)
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 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.
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 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 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 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 (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 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."
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 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.
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-
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 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.
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 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 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 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 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 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.
(J.M. PANCHAL)
NEW
DELHI;
MARCH
27, 2009.
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