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of <h1>180-day limit in unamended s.35H(1) CEA is absolute; s.5 Limitation Act cannot extend statutory period for appeals</h1> <h3>Commissioner of Customs & Central Excise Versus M/s Hongo India (P) Ltd. & Anr.</h3> SC held that the 180-day limitation in unamended s.35H(1) CEA is absolute and cannot be extended by s.5 Limitation Act; the legislative scheme shows a ... Condonation of delay in presentation of the reference application under unamended Section 35 H(1) of the CEA, 1944 beyond the prescribed period (of 180 days) - Section 5 of the Limitation Act, 1963 - whether Section 5 of the Limitation Act is applicable in respect of reference application filed in the High Court under Section 35H of the unamended Act. HELD THAT:- The language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. We hold that the High Court has no power to condone the delay in filing the 'reference application' filed by the Commissioner under unamended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation. Thus, we confirm the decision of the High Court. Hence, all the appeals are accordingly dismissed. 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 ActBackground 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.
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