Appeals governed by unamended law, Finance Act amendment not retrospective, court allows petition.

The court held that the appeals filed by the petitioners should be governed by the unamended provision of Section 35 of the Central Excise Act, 1944. The amendment to Section 35 by the Finance Act, 2001 was deemed substantive, affecting the right of appeal, and therefore could not be applied retrospectively. The court set aside the orders dismissing the appeals, condoned the delay, and remanded the matter for further consideration. The petition was allowed, and the rule was made absolute with no order as to costs.

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Issues Involved:
1. Whether the appeals filed by the petitioners were to be governed by the unamended provision of Section 35 of the Central Excise Act, 1944.
2. Whether the amendment to Section 35 of the Act by the Finance Act, 2001 is prospective or retrospective in nature.

Issue-wise Detailed Analysis:

1. Whether the appeals filed by the petitioners were to be governed by the unamended provision of Section 35 of the Central Excise Act, 1944:

The petitioners received the order from Respondent No. 4 on 20th March 2001. At that time, the statutory period for filing an appeal was three months, allowing them to file an appeal by 20th June 2001. The Commissioner (Appeals) could condone a delay of up to three months beyond this period. However, due to the amendment by the Finance Act, 2001, which came into force on 11th May 2001, the period for filing appeals was reduced to sixty days, and the power to condone delay was curtailed to thirty days. The petitioners filed their appeals on 16th July 2001, along with applications for condonation of delay of 27 days.

Respondent No. 3 dismissed the appeals on 30th October 2001, stating that the delay beyond thirty days could not be condoned. The CEGAT upheld this decision on 16th October 2002, applying the amended Section 35 even to orders passed before 11th May 2001. The petitioners argued that the amendment should not apply retrospectively and that their right to file an appeal within three months should be preserved.

2. Whether the amendment to Section 35 of the Act by the Finance Act, 2001 is prospective or retrospective in nature:

The court analyzed whether the amendment to Section 35 was procedural or substantive. It was noted that procedural changes generally apply retrospectively, while substantive changes do not unless explicitly stated. The court cited various legal principles and precedents, including the Supreme Court's decision in New India Assurance Co. v. Shanti Misra, which held that amendments affecting substantive rights are presumed to be prospective.

The court concluded that the amendment to Section 35 was not merely procedural, as it affected the substantive right of appeal by reducing the period for filing appeals and limiting the power to condone delays. Therefore, the amendment could not be applied retrospectively to orders passed before 11th May 2001.

Conclusion:

The court held that the appeals filed by the petitioners should be governed by the unamended provision of Section 35, allowing a three-month period for filing appeals and a further three-month period for condonation of delay. The orders of the Commissioner (Appeals) and the CEGAT were set aside. The court condoned the delay in filing the appeals and remanded the matter to the Commissioner (Appeals) to decide the appeals on their merits within six months. The petition was allowed, and the rule was made absolute in terms of prayer clauses (a) and (b) with no order as to costs.

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