2009 (3) TMI 31 - SC - Central Excise

Whether HC has power to condone the delay in presentation of the reference application under unamended Section 35 H(1) of the CEA, 1944 beyond the prescribed period (of 180 days) by applying Section 5 of the Limitation Act, 1963 time limit prescribed u/s 35H(1) is absolute and unextendable u/s 5 Limitation Act - Since court has to respect the legislative intent, limitation cannot be extended u/s 5 of Limitation Act - HC rightly dismissed the reference on the ground of limitation

Summary

Issues Involved:
1. Whether the High Court has the power to condone the delay in the presentation of the reference application under unamended Section 35H(1) of the Central Excise Act, 1944, by applying Section 5 of the Limitation Act, 1963.

Detailed Analysis:

Issue 1: Power of High Court to Condon Delay under Section 35H(1) of the Central Excise Act

Background and Context:
In these appeals, the primary question was whether the High Court could condone the delay in filing a reference application under Section 35H(1) of the unamended Central Excise Act, 1944, beyond the prescribed period by applying Section 5 of the Limitation Act, 1963. The issue arose from the Allahabad High Court's decision, which dismissed the reference applications filed by the Commissioner of Customs & Central Excise due to the delay, citing a lack of power to condone such delays under the Act.

Relevant Provisions of the Central Excise Act:
- Section 35: Allows appeals to the Commissioner of Central Excise (Appeals) within 60 days, extendable by 30 days if sufficient cause is shown.
- Section 35B: Permits appeals to the Appellate Tribunal within 90 days, with the Tribunal empowered to condone delays beyond this period if sufficient cause is shown.
- Section 35EE: Provides for revisions by the Central Government within 90 days, extendable by another 90 days for sufficient cause.
- Section 35G: Allows appeals to the High Court within 180 days, with no provision for condoning delays.
- Section 35H: Pertains to reference applications to the High Court within 180 days, with no provision for condoning delays.

Arguments and Legal Precedents:
- The Additional Solicitor General argued that the High Court, having inherent and plenary powers, could consider delays beyond the prescribed period under the Act, invoking Section 5 of the Limitation Act due to the absence of a specific prohibition.
- The respondents contended that the Central Excise Act is a self-contained code, and the absence of a provision for condoning delays in Section 35H reflects legislative intent that should be respected.

Constitutional and Legal Principles:
- Article 214 and 215 of the Constitution of India establish the High Courts as courts of record with inherent and plenary powers.
- Section 5 of the Limitation Act allows for the extension of prescribed periods if sufficient cause is shown, while Section 29(2) states that provisions of the Limitation Act apply to special or local laws unless expressly excluded.

Judicial Analysis:
- The Court examined whether Section 5 of the Limitation Act applies to reference applications under Section 35H of the Central Excise Act.
- The Court noted that the Central Excise Act provides specific periods for filing appeals and revisions, with explicit provisions for condoning delays in certain sections but not in Sections 35G and 35H.
- The Court referred to the decision in Union of India vs. M/s Popular Construction Co., where the phrase "but not thereafter" in the Arbitration and Conciliation Act, 1996, was held to exclude the application of Section 5 of the Limitation Act.
- The Court also considered the principles laid out in Sharda Devi vs. State of Bihar and M.V. Elisabeth and Others vs. Harwan Investment and Trading Pvt. Ltd., emphasizing the inherent powers of High Courts but distinguishing these cases based on the specific statutory provisions of the Central Excise Act.

Conclusion:
- The Court concluded that the language of Sections 35, 35B, 35EE, 35G, and 35H of the Central Excise Act indicates a legislative intent to limit the period for filing appeals and references strictly.
- The absence of a provision for condoning delays in Sections 35G and 35H suggests a complete exclusion of Section 5 of the Limitation Act.
- The Court held that the High Court has no power to condone delays beyond the prescribed period of 180 days for filing reference applications under Section 35H(1) of the unamended Central Excise Act, 1944.

Judgment:
The Supreme Court confirmed the decision of the High Court, dismissing the appeals and holding that the High Court correctly refused to condone the delay in filing the reference applications. The appeals were dismissed with no costs.