2004 (12) TMI 101 - HC - Central Excise

Issues Involved:
1. Applicability of Section 5 of the Limitation Act to Section 35H of the Central Excise Act.
2. Whether the High Court exercises civil court jurisdiction under Section 35H.
3. Exclusion of Section 29(2) of the Limitation Act in relation to Section 35H.
4. Legislative intent behind the amendments to Section 35H.

Detailed Analysis:

1. Applicability of Section 5 of the Limitation Act to Section 35H of the Central Excise Act:
Mr. Dutta argued that Section 35H, inserted by the Finance Act, 1999, extends the period of limitation and should be construed as the ultimate period of limitation without the application of Section 5 of the Limitation Act. He contended that the absence of any provision to condone delay implies the exclusion of the Limitation Act as per Section 29(2). He also emphasized that the High Court's jurisdiction under Section 35H is advisory and not akin to a civil court. Conversely, Mr. Banerjee argued that the High Court retains its jurisdiction and power to condone delays unless expressly taken away by legislation. Mr. Chakraborty supported Mr. Banerjee's stance, asserting the High Court's power to condone delays.

2. Whether the High Court exercises civil court jurisdiction under Section 35H:
The judgment clarified that the High Court's jurisdiction under Section 35H is advisory and confined to answering questions of law. It does not decide the case, which remains with the Tribunal. However, the High Court retains its characteristics as a court and can exercise powers ancillary to its advisory jurisdiction. The judgment referred to previous cases, such as Anoop Kumar v. Commissioner of Custom and CIT, W.B. v. M/s. Ruby Traders, which established that the High Court cannot exercise inherent jurisdiction while dealing with references but remains a court for procedural purposes.

3. Exclusion of Section 29(2) of the Limitation Act in relation to Section 35H:
The court examined the Central Excise Act and other fiscal laws to determine if Section 29(2) of the Limitation Act was excluded. It found no express or implied exclusion in Section 35H. The judgment compared similar provisions in other revenue laws, noting that where the legislature intended to limit the power of condonation, it did so explicitly. The absence of such a provision in Section 35H indicates that Section 29(2) applies, allowing the High Court to condone delays.

4. Legislative intent behind the amendments to Section 35H:
The court reviewed the Finance Bill, 1999, and found no indication that the legislature intended to exclude the High Court's power to condone delays. The extension of the limitation period to 180 days was not meant to preclude the application of Section 5 of the Limitation Act. The judgment emphasized that unless expressly excluded, the application of Section 29(2) cannot be presumed to be excluded.

Conclusion:
The judgment concluded that there is no provision in the Central Excise Act to exclude the application of Section 29(2) of the Limitation Act in relation to Section 35H. Therefore, the application for condonation of delay is maintainable. The preliminary objection was overruled, and the application for condonation of delay was listed for hearing on merit.

Order:
The application for condonation of delay is held to be maintainable. The matter is to be listed for hearing on merit. Urgent xerox certified copies were directed to be made available to both parties on usual undertaking.

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