2010 (12) TMI 123 - HC - Central Excise

Condonation of Delay - There was a delay of four days in filing the appeal - Supreme Court in the case of Commissioner of Customs & Central Excise Vs. Hongo India (P) Ltd., (2009 -TMI - 32749 - SUPREME COURT) held that the High Court did not have power to condone delay in appeal and provisions of the Limitation Act, 1963 did not apply - The Parliament to overcome above Judicial Verdict by Finance Act, 2009 amended Section 35G of the Central Excise Act, 1944 with retrospective effect from 1st July, 2003 giving powers to the High Court to condone delay in filing the appeals under that section Question of Law Power of Review - Reliance is placed on a judgment of the Hon ble Supreme Court in the case of M.K. Venkatchalam Vs. Bombay Dying and Manufacturing Co. Ltd., reported in 1958 (4) TMI 4 - SUPREME Court, wherein the Hon ble Supreme Court held that in case of apparent error on the face of record the power to review can be exercised - Review petition is allowed

Issues Involved:
1. Whether the High Court has the power to review its own decision rendered in an appeal filed under the Central Excise Act, 1944, in the absence of an express provision for review.

Detailed Analysis:

1. Jurisdiction to Review Decisions:
The primary issue addressed is whether the High Court has the power to review its own decisions in the absence of an express provision in the Central Excise Act, 1944. The factual background reveals that the petitioner sought condonation of a four-day delay in filing an appeal under Section 35G of the Act, which was initially dismissed due to a lack of jurisdiction to condone delays as per the judgment in Commissioner of Central Excise, Pune-II Vs. Shruti Colorants Ltd.

2. Conflicting Judicial Decisions:
The case highlights conflicting decisions from different Division Benches of the High Court. One bench held that the High Court could not condone delays under Section 35G of the Act, while another bench, referring to Section 29(2) of the Limitation Act, 1963, held that the High Court had the power to condone delays under Section 130 of the Customs Act, 1962. This conflict led to the constitution of a Full Bench to resolve the issue.

3. Full Bench Decision:
The Full Bench, referencing judgments such as Mukri Gopalan Vs. Cheppilat Puthanpurayal Abbubacker and CIT Vs. Velingkar Brothers, concluded that Section 5 of the Limitation Act applied to appeals filed under Section 35G of the Act, thereby granting the High Court the power to condone delays.

4. Supreme Court Ruling and Legislative Amendment:
Before the review petition could be considered, the Supreme Court in Commissioner of Customs & Central Excise Vs. Hongo India (P) Ltd. ruled that the High Court did not have the power to condone delays in appeals and that the provisions of the Limitation Act did not apply. Subsequently, the Parliament amended Section 35G of the Central Excise Act, 1944, with retrospective effect from July 1, 2003, to grant the High Court the power to condone delays in filing appeals.

5. Power of Review:
The Court examined whether it had the inherent power to review its decisions. Both parties agreed that the High Court possessed such power. The petitioners cited several judgments, including M.M. Thomas Vs. State of Kerala and Shivdeo Singh Vs. State of Punjab, to argue that the High Court, as a Court of record, has inherent powers to review its decisions to prevent miscarriage of justice or correct grave errors.

6. Application of Civil Procedure Code:
The Court analyzed Section 35G(9) of the Central Excise Act, which states that the provisions of the Code of Civil Procedure, 1908, relating to appeals to the High Court, shall apply to appeals under this section. The Court concluded that this provision does not restrict the High Court's jurisdiction to only the provisions of the Code of Civil Procedure relating to appeals but includes other related provisions, thereby supporting the power of review.

7. Error Apparent on the Face of Record:
The Court acknowledged that a retrospective amendment could be a ground for review as it constitutes an error apparent on the face of the record. The Supreme Court in Raja Shatrunji Vs. Mohammad Azmat Azim Khan held that a judgment applying unamended law, which has been retrospectively amended, constitutes an error apparent on the face of the record.

8. Condonation of Delay:
Considering the merits of the prayer for condonation of delay, the Court found that the delay of four days in filing the appeal was justifiable and condoned the delay. The review petition was allowed, and the Registry was directed to register the appeals and review petitions filed by the Revenue.

Conclusion:
The High Court concluded that it has the inherent power to review its decisions even in the absence of an express provision in the Central Excise Act, 1944. The retrospective amendment to Section 35G of the Act and the inherent powers of the High Court as a Court of record justified the review and condonation of delay in filing the appeal. The review petition was allowed, and the delay in filing the appeal was condoned.

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