Circular No.888/8/2009-CX dated 21/5/2009

Power to condone delay beyond 180 days by High Court in application/appeals filed under Section 35H and 35G of Central  Excise Act, 1944 – Larger Bench decision of Supreme Court in the case of Commissioner of Customs & Central Excise Vs. Hongo India Pvt. Ltd.  – reg.

Circular No.888/8/2009-CX.

F.No.276/109/2007-CX.8A

Government of India

Ministry of Finance

Department of Revenue

(Central Board of Excise & Customs)

Legal Section

New Delhi, the 21st May, 2009.

Subject : Power to condone delay beyond 180 days by High Court in application/appeals filed under Section 35H and 35G of Central  Excise Act, 1944 – Larger Bench decision of Supreme Court in the case of Commissioner of Customs & Central Excise Vs. Hongo India Pvt. Ltd.  – reg.

            I may invite your attention to the Supreme Court’s Larger Bench judgement in the case of Commissioner of Customs & Central Excise Vs. Hongo India Pvt. Ltd. [2009 (236) E.L.T 417 (S.C)] wherein it has been held 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.  The Board has taken up the matter with Law Ministry for filing Review Petition in the Supreme Court. While deliberating on the above issue, in para 7 of the judgement, Apex Court has also mentioned Section 35G (unamended) of the Central Excise Act, 1944 relating to Appeal to the High Court by making the same observations as those of Section 35(H) (1) ibid  

2.         The aforesaid observations of Apex Court appear to be relating to the unamended Sections 35(H) and 35(G) of Central Excise Act, 1944 wherein only Reference Applications were filed.   Since in para 7 of the Apex Court’s judgement, the word  “Appeal” under Section 35G has been used, it should be ensured that Appeal under the present Section 35G of the Act, must be filed within the stipulated period of 180 days.  However, where delay in filing appeal under Section 35G has already occurred, Hon’ble Court’s attention may be invited to sub section (9) of Section 35G of Central Excise Act, 1944 (as amended) which stipulates that the provisions of Code of Civil Procedure, 1908 relating to appeals to the High Court shall as far as may be, apply in the case of appeals under this section. 

3.         Section 130 and Section 130A of the Customs Act, 1962 are pari materia to Section 35G and Section 35H of the Central Excise Act, 1944 and, therefore, similar action as above may be taken in respect of appeals filed under Customs Act, 1962.

4.         This issues with the approval of Member (L & J).

Yours faithfully,

 (M.D Singh)

Commissioner (L & J)

Tel No.26161042