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TMI Blog2003 (7) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner Nos. 1 and 2 were also called upon to show cause why penalty should not be imposed upon them under Rules 173Q and 209A of the Central Excise Rules, 1944. The petitioners filed their reply to the show cause notice on 18th February, 1999. The Respondent No. 4 after due enquiry confirmed the show cause notice and confiscated seized goods with an option to the petitioners to redeem the same on payment of redemption fine of Rs. 10,000/-. Respondent No. 4 also imposed a fine of Rs. 50,000/- on petitioner No. 1 and Rs. 20,000/- on petitioner No. 2. 3.The petitioners received order passed by respondent No. 4 dated 18th February, 1999 on 20th March, 2001. At that time, the statutory period within which the petitioners could file an appeal to respondent No. 3 was three months from the date of receipt of the order, thus, the petitioners could file an appeal on or before 20th June, 2001. Further, respondent No. 3 was empowered under the proviso to Section 35 of the Central Excise Act, 1944 ('the Act' for short) to condone the delay in filing an appeal up to a further period of 3 months from the date of order. Placed in plain words delay up to 3 months could be condoned by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 passed by respondent No. 2 are without jurisdiction, bad in law and contrary to the provisions of Section 35 of the Act. According to the petitioners, it is a well settled position in law that amendment to a statute can only be prospective unless the same has been specifically made retrospective by express words or by implication. 10.The petitioners submit that the amendment to Section 35 of the Act took place only when the Parliament passed the above Finance Bill and the President has given his assent to it on 11th May, 2001. The period of sixty days as substituted in Section 35 of the Act would apply only with effect from 11th May, 2001 and could not be applied to the orders passed prior to 11th May, 2001. 11.The petitioners urge that in the present case, the orders of the Respondent No. 4 were received by them on 20th March, 2001 and on that date they were entitled to file appeals within three months since the date of that order being the date of communication or knowledge of the order sought to be appealed against as laid down in D. Saibaba v. Bar Council of India, (2003) 6 SCC 186. According to the petitioners, they could file appeals on or before 20th June, 2001. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation filed by the petitioners seeking condonation of delay on its own merits. 15.According to the petitioners, respondent Nos. 2 and 3 erroneously applied amended Section 35 of the Act and erroneously refused to consider and deal with petitioners' applications for condonation of delay from order of respondent No. 4, which has resulted in confirming orders on merits. Thus, the petitioners were deprived of their statutory right of appeal. In the circumstances, petitioners submit that the impugned orders are liable to be quashed and set aside and their petition is liable to be allowed. Per contra : 16.Shri R. V. Desai, learned Counsel, appearing for the Revenue contended that the rules of limitation are prima facie, rules of procedure and do not create any legal right in favour of any person nor do they create any cause of action but simply prescribes that the remedy can be exercised only up to a certain period and not subsequently. According to Shri Desai, no person can have vested right in any course of procedure. The legislature by an amendment has shortened the period of limitation. While shortening the period of limitation the legislature neither provided for any saving cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case. The main ground of challenge since centres around the amended provisions of Section 35 of the Act amended by the Finance Act, 2001, the text of it is reproduced hereinbelow: Unamended Sec. 35 Amended Sec. 35 Appeals to Commissioner (Appeals) - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within three months from the date of communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. Appeal to Commissionar (Appeals) - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Commissioner of Central Excise may appeal to the Commissioner (Appeals) [hereafter in this Chapter referred to as the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Code, have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an act of Parliament the mode of procedure is altered he has no other right than to proceed according to altered mode. See Maxwell on Interpretation of Statutes on P. 225 Colonial Sugar Refining Co. Ltd. v. Irving 1985 AC 369 (A). In other words, a change in the law of procedure operates retrospectively and unlike the law relating vested right is not only prospective." On the aforesaid principle, a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. No person has a vested right in any course of procedure. He has only right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered then he has no other right than to proceed according to altered mode. 23.As indicated above, Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. Every right has a vested right in substantive law but no such right exists in procedural law. A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations to impose new duties in respect of duties already accomplished. (Emphasis supplied) 25.From the aforesaid various decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties on the date of the suit or adjudication of the suit unless such a legislation is retrospective and a Court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the appellant in an appeal are determined under the law in force on the date of the suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of the parties are concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to use the words of the original Act "........ may appeal to the ........ within three months". In other words, no right of appeal shall exist after three months. (of course subject to condonation of delay for further 3 months only). Unless right of appeal is exercised strictly in terms of Section 35 the right of appeal shall get extinguished. If that be so, the limitation provided under unamended Section 35 was a inseparable part of the substantive right of appeal provided by the section. Thus, amended Section 35 in absence of anything in it to show that it is retrospective, does not affect the right of the parties which has accrued to them on the date of passing of the order-in-original by the adjudicating authority. 27.Assuming, contrary to the above opinion expressed, that the requirement that appeal must be filed within 3 months subject to getting delay condoned for a further maximum period of 3 months, does not take away the substantive right of appeal but merely bars the remedy, even then, the Revenue is not in a better position. Where the question arises whether a statute has a retrospective operation, it is usual to divide statute into two classes, the one where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantial rights. 28.As indicated hereinabove, the litigant has a substantive right of appeal, law providing that right cannot be said to be mere procedural law. On the canvas of the aforesaid settled principle of law, in the present case, as indicated hereinabove, amendment to Section 35 is not merely procedural but it takes away substantive right of the parties to file appeal once the period of limitation is lost of course subject to right to claim condonation of delay for a specified period, the outer limit of which is provided in the proviso to the said section. Once that outer limit is over the right of appeal is lost. After expiry of the period for appeal right stands extinguished. We thus hold that the amendment to Section 35 of the Act has no retrospective effect. The appeals preferred by the petitioners were unaffected by change in law as it related to determination of substantive rights of the parties and the same were required to be decided in the light of law of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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