Powers of High Court on condonation of Delay

[brett_lee38]

Recently larger Bench of  Hon'ble Supreme Court in the case of Hongo has held that unless the statute specifically provide the High Court has no power to condone delay by invoking the provisions of Section 5 of Limitation Act. The observations of the Hon'ble Apex Court are as under
  " 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, the 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 Supreme Court has held that, in case if an appeal filed before Commissioner (Appeals), under section 35 of the Central Excise Act 1944, the provision specifically prescribes that Commissioner (Appeals) can admit an appeal up to 30 days beyond the statutory limit of 60 days, whereas in case of appeal before high court, provision doesn't say anything about an appeal filed beyond 180 days, therefore this an exclusion for applicability of section 5 of limitation Act 1963. Hence High Court has no power to condone delay.

The real intention of the legislature does not appear to be as per the view taken by larger bench of Supreme Court in the case of Hongo India (Cited supra), that the proceedings before High court are governed by Code of Civil Procedure 1908 and the same has been stipulated under section 130 (9) of the Customs Act 1962 and section 35G(9) of the Central Excise Act 1944. With regard to the applicability of Limitation Act 1963, if intention of the statue is not to allow the party for filing appeal beyond 180 days, then statue would have expressly excluded the applicability of Limitation Act 1963. The provisions of section 29(2) of Limitation Act 1963 is very clear that unless the Special Act expressly excludes the applicability of limitation Act 1963 the provisions of section 4 to 24 of limitation Act will apply to special law. Therefore the real intention of the statue for providing powers to executive authority and quasi judicial authority to condone delay is that unless the special Acts provides such powers to quasi judicial authority or executive authority, they cannot condone delay by invoking Limitation Act. Whereas the provision for condone delay in case of appeal filed under section 130 of customs Act 1962 and 35 G of Central Excise Act 1944 is silent only because of the applicability of Limitation Act 1963. The Division Bench of Calcutta High Court in the case Commissioner of Central Excise, Bolpur Vs. Saktigarh Textile Industries Private Limited, it was held that while exercising the jurisdiction under Section 35H of the Central Excise Act, there seems to be no provision in the statute to exclude impliedly or expressly the application of Section 29(2) of the Limitation Act. On the contrary, a comparative study of the different fiscal laws as amended and as discussed hereinbefore clearly indicates that the legislature has never intended to exclude the application of Section 29(2) of the Limitation Act in relation to Section 35H of the Central Excise Act.
If we see other special laws like Foreign Exchange Management Act, 1999, section 35 of the Act deals about appeal to High Court. As per the provisions an appeal to be filed within 60 days and high court has power to condone delay by another 60 days if there sufficient cause. Here we can assume that there is exclusion for applicability of section 5 of limitation Act 1963 and condone delay beyond 120 days and power of the High Court has been restricted to condone delay but in case of appeal under section 130 of Customs Act and 35G of Central Excise Act 1944, there are no such restrictions.

Can we assume that the Quasi Judicial Authority has got more powers than that of the High Court?
CESTAT is empowered to condone delay irrespective of number of days, provided sufficient cause for delay is shown. Whereas as per the judgement given by the Apex Court, the High Court has no power to condone delay though it is a higher forum for filing an appeal against the Tribunal order. Therefore we are not able to assume that powers of CESTAT is more than High Court.
Issues were not brought before Larger Bench of Supreme Court: During the submissions, the following important issues were not brought before the view of the larger bench of Supreme Court:
Appeal to High Court and applicability of Code of Civil Procedure 1908:
As discussed above, the code of Civil Procedure will apply to appeal filed before High Court. Therefore let us see the provisions relating to appeals to High Court under Code of Civil Procedure 1908.
i) Section 100 (1) of Civil Procedure Code 1908:
Section 100 of Civil Procedure Code, 1908 is a provision for filing appeal to high court.
ii) Order XLII, rule 1 & Order XLIII Rule 2 of Civil Procedure Code 1908:
The Order XLII, rule 1 & Order XLIII Rule 2 of Civil Procedure Code 1908 stating that procedures stipulated under Order XLI for filing appeals from original decree will apply to appeals from appellate decree and orders.
iii) Order XLI of Civil Procedure Code :
Rule 1 to 37 of Order XLI Code of Civil Procedure Code provides provisions relating to procedure for filing appeal.
Power of the High Court to condone delay under Civil Procedure Code:
Rule 3A of Order XLI of Code of Civil Procedure 1908 every appeal should be filed before appellate court along with an application for condoning delay, if such appeal is filed beyond the statutory limit. After issuing notice to the opposite party, court will decide the application.
Therefore irrespective of applicability of Limitation Act 1963, High court has got powers to condone the delay by invoking rule 3A of Order XLI of Civil Procedure Code 1908.
Powers denied for condoning the delay:
If High Court has no power to condone the delay even beyond a single day it is nothing but denial of justice. The time limit prescribed by the Acts is of a procedural nature and if such delay is not condoned though there is sufficient cause, as a result of it, a meritorious matter will be thrown out. Therefore justice should prevail and appeal should be heard on merits. The same principle has been insisted upon by the supreme court in the case Collector, Land Acquisition Anantnag and another Versus Mst. Katiji and others it was held that Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties".
Inherent powers of High Court :
Apart from the aforesaid provisions, as per section 151 of Code of Civil Procedure 1908 " Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Therefore High Court has inherent powers to make such orders as may be necessary to meet the ends of justice. Therefore irrespective of applicability of Limitation Act 1963, High Court has power to condone delay by invoking section 151 & 3A of Order XLI of Civil Procedure Code 1908.

Therefore as discussed above, the High court has enormous power to condone delay by invoking the provisions of Limitation Act 1963 and Code of Civil Procedure 1908. If, a meritorious matter cannot be heard by High court due to delay, it will be denial of justice. On account of judicial discipline, an order of the Apex court should be followed by every lower court. Now the judgment rendered by the Supreme Court has to be followed by all High Courts in India. Therefore Law Commission may place this topic before commission's meeting for giving a report to the Government to request the Hon'ble Supreme Court to reconsider the judgement rendered in Commissioner of Customs and Central Excise Vs M/s Hongo India (P) Ltd reported in 2009-TIOL-48-SC-CX-LB or to carry out necessary and appropriate amendments in the Customs Act 1962 and Central Excise Act 1944.

[probal_shome]

Well researched. Succinct and informative.

I suppose the whole issue will become academic with a retrospective amendment in the Budget 2009.

[pawansingla]

Though amendment in income tax was carried out.Whether any corresponding amendment was carried out in excuse and custom Act?