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TMI Blog1992 (9) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents explanation, the Assistant Collector found that going by the molecular weight of the product, it cannot be considered as high polymer for being classified under Item 15A(1) CET, and therefore, agreed with the claim of the respondents that the product should be correctly classified under Item 68. This order of the Assistant Collector was dated 16-6-1983. The Collector of Central Excise, Ahmedabad, subsequently, issued a direction under Sec. 35E(2) of the Central Excises Salt Act, 1944, to the Assistant Collector to apply before the Collector of Central Excise (Appeals) for reviewing the order of the Assistant Collector. A direction under Sec. 35E(2) for this purpose was issued by the Collector of Central Excise, Ahmedabad on 27-9-1984. The Collector (Appeals), in his order, held that the application before him under Sec. 35E(3) succeeded on merits, but failed on the aspect of limitation. This was because the Collector (Appeals) found that the time limit, prescribed under Sec. 35E(3) for making order under Sec. 35E(2), though it was two years on the date when the adjudication order was passed, yet it had been reduced to one year by the Finance Act of 1984 which came int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion period was reduced by an amending Act that where the new limitation period, if applied to the facts of a case, would have expired before the amending Act was passed and so, it could not be complied with, then the old limitation will apply. The ld. Counsel pointed out that it was this aspect that had been also noted by the Tribunal in the Sarabhai case. The ld. Counsel also referred to the Principles of Statutory Interpretation by G.P. Singh. The ld. Counsel drew attention to this passage When the later Act provides a shorter period of limitation than that provided by the earlier Act, a right of suit, which is subsisting according to the earlier Act on the date when the later Act comes into operation, will not be taken to be extinguished. If there is still time even on the basis of the later Act within which such a suit can be filed, the right has to be availed of within that period, and the benefit of the earlier Act is not available. The above passage is based on the judgment of Calcutta High Court in the case of Mohd. Saleh v. Chandra Kumar -AIR 1930 Cal. 34. The ld. Counsel also relied upon Allahabad High Court in the case of Khem Chand Keshrimal v. Commissioner of Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erjit and Others, reported in AIR 1966 SC 1423, as seen from the following extract : (11) Section 6 of the Relief of Indebtedness Act is clearly retrospective. Indeed, the heading of the section clearly shows that it lays down the retrospective effect. This being so, the core of the problem really is whether the suit could be said to be pending on June 8, 1956 when only an appeal from the judgment in the suit was pending. This requires the consideration whether the word suit includes an appeal from the judgment in the suit. An appeal has been said to be the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below. (per Lord Westbury in Attorney-General v. Sillem, (1864) 11 ER 1200 at p. 1209). The only difference between a suit and an appeal is this that an appeal only reviews and corrects the proceedings in a cause already constituted but does not create the cause." As it is intended to interfere in the cause by its means, it is a part of it, and in connection with some matters and some statutes, it is said that an appeal is a continuation of a suit." (Emphasis added) The Tribunal, on the basis of the above decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that decision, the High Court had considered a case where the petitioner had not filed any appeal but preferred a revision application and in this context the court was considering whether the right to apply for revision of assessment order, was a vested right or not and observed that the making of an assessment order is not a transaction or consideration giving rise to a right and that assessing a dealer to sales tax does not confer any right upon him and held that, therefore, it cannot be said that the amendment Act takes away or impairs a vested right acquired. Factually, also the time available for the petitioner therein, under the new law, was nearly nine months and the court observed, actually, the Amendment Act was passed so much before the expiry of one year from the date of service of the order upon the assessee that it could hardly make a grievance of the shortening of the period and contend that it was not left with sufficient time for applying for revision . The Court also oberved Revisional jurisdiction is notoriously discretionary; there is no right to get an order revised as there is a right to get an order corrected on appeal. Instituting a suit and instituting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Dhanbad v. Collector of Central Excise, Patna [1987 (31) E.L.T. 521 (Tri.) = 1984 ECR 1767 (CEGAT)] has held in para 10 of the said order as follows - The show cause notice to the appellants is dated 27/29-4-1982. The order of the Asstt. Collector as reproduced in the communication of the Supdtt. dated 29-4-1981 is dated 20-4-1981. Under sub-section (4) of Section 35A of the Act extracted above, it would be seen that the review proceedings could not be commenced after expiry of period of one year from the date of Asstt. Collector s decision. The proceedings must, therefore, be held to be time-barred". The Hon ble Tribunal in the case of M/s. Atma Steel Pvt. Ltd. v. Collector of Central Excise, Chandigarh and Others [1984 (17) E.L.T. 331 (Tribunal)] have held in para 101(c) and (d) as follows - (c) The proceedings initiated with reference to a rule or provision validly subsisting at the time of initiation of proceedings can continue in spite of repeal or substitution of the original provision; (d) Recourse can be had to the provisions as prevailing at the time of initiation of proceedings, and the period available would be the one as permissible under the provisions e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Statutory Interpretation by Guru Prasanna Singh, Chief Justice, High Court of Madhya Pradesh, Third Edition 1983, Bharat Law House, which clarifies the view taken by me - (d) Statutes of Limitation- Statutes of limitation are regarded as procedural and the law of limitation which applies to a suit is the law in force at the date of the institution of the suit irrespective of the date of accrual of the cause of action. [C. Beepathuma v. V. Shankaranarayanan - AIR 1965 SC 241 p. 245; Shahidganj (Masjid) v. SGP Committee - AIR 1940 PC 116 p. 121; Sonilal v. Kanhaiyalal, 19IC 291 (PC) C294 (Suit instituted when Act XV of 1877 was in force; acknowledgement relied upon to extend limitation made when earlier Act was in force; held Act XV of 1877 applied to the suit and acknowledgement to be effective to extend limitation must conform to Section 19 of that Act); See further Mt. Allah Rakhi v. Shah Mohammad, AIR 1934 PC 77 p. 78 (pending proceedings are not affected by a change in the law of limitation) See further, Ramprasad v. Vijay Kumar - AIR 1967 SC 278 p. 283 (para 13)]. The object of a statute of limitation is not to create any right but to prescribe periods within which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Calcutta High Court in the case of Khondhar Mahomed Saleh s case (supra) is still a good law and the Supreme Court ruling rendered in the case of Garikapati Veeraya s case is not in conflict with it. My view is also supported by another ruling of the Bench rendered in the case of Collector of Central Excise v. MM. Rubber Co., reported in 1990 (50) E.L.T. 387 (T). 6. In view of my findings, I agree with the reasoning given by the Collector (Appeals) in the impugned order regarding limitation and accept the respondents arguments in support thereof and order for dismissing this appeal as not maintainable. Appeal dismissed. 7. [Reference to President per : K.S. Venkataramani]. - In view of the separate order recorded by the two Members, the following point of difference has arisen : Whether for the purposes of limitation for an application under Sec. 35E(3) of Central Excises Salt Act, 1944 after its amendment in 1984 shortening the period of limitation from two years to one year, if there is still time available even on the basis of the amended period of limitation within which such an application can be filed, the right has to be exercised within that period and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of Section 35E by the Finance Act, 1984 (21 of 1984) which came into force on 11-5-1984, no saving clause was enacted on, the lines of Section 30 of the Indian Limitation Act, 1963. In this background the moot question which arises for my consideration is : what is the effect where the cause of action had accrued and the period of limitation has not expired under the old Section 35E(3) before the commencement of the amended Section but the period of limitation has been reduced in the amended Section. 12. My learned brother, Shri K.S. Venkataramani, Technical Member, has taken a view in his proposed Order that the amended provision reducing the period from two years to one year cannot have a retrospective effect since the right of appeal is a vested right which cannot be taken away by an amendment unless that amendment expressly indicates its retrospective effect, whereas my other learned Judicial Brother, Shri S.L. Peeran, has taken a view that since the period of 35 days was still available to the Collector of Central Excise, Ahmedabad, to pass the Order when the amended Section 35E(3) came into force on 11-5-1984 to exercise his powers under sub-section (2) of Section 35E, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation remains procedural law. The rules of limitation are rules of procedure and do not create any right in favour of any person, nor define or create causes of action but merely prescribe the period within which the remedy can be exercised. As soon as a cause of action accrues the right vests in the aggrieved party to file a suit and to carry it on in the appellate Court in the event of his failure in the trial Court. But this is all the right that he has; he has no vested right either in the procedure to be followed by the Court when he institutes a suit or an appeal or the period of limitation prescribed for the institution of a suit or an appeal. There is no vested right in a remedy. 14. It may also be stated here that after the closure of the case for orders by me, the learned counsel for the appellants forwarded a copy of the judgment delivered by the Apex Court in the case of Vinod Gurudas Raikar v. National Insurance, 1991 (2) SCALE 493, wherein the Apex Court reiterated the same view observing that a law which is procedural in nature, and does not affect the rights/has to be held to be retrospectively applicable. In that case the appellant was injured in a road ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, it is adjectival in nature, and has to be governed by the new Act - subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it unpractical for him to avail of the remedy. This principle has been followed by this Court in many cases and by way of illustration we would like to mention New India Insurance Co. Ltd. v. Smt. Shanti Misra -1976 (2) SCR 266. The husband of the respondent in that case died in an accident in 1966. A period of two years was available to the respondent for instituting a suit for recovery of damages. In March, 1967 the Claims Tribunal under Section 110 of the Motor Vehicles Act, 1939 was constituted, barring the jurisdiction of the civil court and prescribing 60 days as the period of limitation. The respondent filed the application in July, 1967. It was held that not having filed a suit before March, 1967 the only reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reasonable time as laid down by the Apex Court in the case of New India Insurance Co. Ltd. v. Smt. Shanti Misra, supra, in the facts and circumstances of the instant case. But, I am not concerned with these questions since the same have not been referred to me for determination and what is referred to me is only the abstract question, i.e. whether for the purposes of limitation for an application under Section 35E(3) of Central Excises and Salt Act, 1944 after its amendment in 1984 shortening the period of limitation from two years to one year, if there is still time available even on the basis of the amended period of limitation within which such an application can be filed, the right has to be exercised within that period and whether the benefit of the earlier longer period of limitation prior to the amendment is not available . On the point of clarity, the question as to whether the time which was available to the Collector on the basis of the amended period of limitation was very little or inadequate time or the time actually taken by him was reasonable in the facts and circumstances of the case has not been referred to me. Hence it is for the Referring Bench to decide. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or computing time available to the Collector because it cannot be assumed that the Finance Bill will be passed totally in the form in which it was introduced in the Parliament. Therefore, the critical date will be the date on which the provisions of Bill came to be enacted after due assent by the President. From this date, the Collector had only 35 days time in the present case which according to the Department is not sufficient. The learned Departmental Representative pointed out already that the amendment was shortening the period available to the Collector for review from two years to one year and it will not be reasonable to further curtail it by requiring the Collector to exercise his power within whatever time may be available to him after the amendment comes into effect. 18. On the question of limitation it has been held by the third Member agreeing with the Member (Judicial) that so far as the period of limitation for commencing a legal proceeding is concerned, it is adjectival in character and has to be governed by the new Act. An exception to the application of limitation under the new Act is whether the new enactment leaves the claimant with such short period for comme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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