2008 (12) TMI 5 - SC - Central Excise

Whether the HC was entitled to condone the delay of 16 days in filing the Reference Application by the Commissioner u/s 35H(1) of the Central Excise Act 1944 revenue contended that u/s 35H HC had inherent jurisdiction to condone the delay - 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 - matter referred to a larger Bench

Summary

Issues:
1. 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?

Analysis:
The Supreme Court addressed the issue of whether the High Court had the authority to condone a delay in filing a Reference Application under Section 35H(1) of the Central Excise Act, 1944. The High Court, in the impugned judgment, concluded that it lacked the power to condone the delay as there was no provision in the 1944 Act to exclude the application of Section 29(2) of the Limitation Act. The Revenue's counsel argued that the High Court possessed inherent jurisdiction to condone the delay under Section 35H, as the Reference Application lay before the High Court, not the Commissioner. The Supreme Court referred to a previous case where it was held that the High Court did not have the power to condone such delays, emphasizing that strict adherence to the limitation period was necessary due to vested rights accruing in favor of the assessee under the 1944 Act.

The Supreme Court expressed doubts regarding the correctness of the previous judgment, emphasizing that the issue revolved around the High Court's jurisdiction, not the Commissioner's authority to condone delays. It clarified that the Reference Application was meant for the High Court, and its powers were not restricted by statutory provisions like Section 35. The Court further differentiated between Section 35H and Section 35 of the 1944 Act, highlighting that the High Court's role was advisory in nature under Section 35H, dealing with substantial questions of law of public importance, without any vested rights accruing to the parties. Consequently, the Court directed the matter to be placed before the Chief Justice for appropriate directions, suggesting a reference to a larger Bench for further consideration and clarification on the issue.

In conclusion, the Supreme Court's judgment focused on the interpretation of the High Court's jurisdiction to condone delays in filing Reference Applications under Section 35H(1) of the Central Excise Act, 1944, emphasizing the distinction between the High Court's powers and the Commissioner's authority in such matters. The Court highlighted the advisory nature of the High Court's role under Section 35H and the absence of vested rights, ultimately raising doubts on the previous interpretation and recommending a larger Bench for further deliberation.