Commr. of C. Ex., Goa vs General Manager, Bharat Sanchar Nigam Ltd.

Mohit S. Shah, C.J.—Both these review applications arise from the judgment dated 12th June, 2009 of another Division Bench of this Court by which this Court dismissed the applications for condensation of delay of 96 days in filing one Appeal u/s 35G of the Central Excise Act, 1944 (for short ''the said Act'') and delay of 200 days in filing the other Appeal u/s 35G of the said Act. The applications were dismissed on the ground that there was no provision for condensation of delay and it would not be open for this Court to take recourse to Section 29(2) of the Limitation Act, 1963. The learned Counsel for the Applicant-Commissioner of Central Excise invites our attention to The Finance (No. 2) Act, 2009, more particularly Section 108 of the Finance (No. 2) Act, 2009 which reads as under :

Amendment of Section 35G. - In Section 35G of the Central Excise Act, after sub-section (2), the following sub-section shall be inserted and shall be deemed to have been inserted with effect from the 1st day of July, 2003, namely :-

(2-A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.

It is submitted that in view of the above statutory amendment with retrospective effect with effect from 1st day of July, 2003 this Court does have power to condone the delay in filing the Appeal if this Court is satisfied that there was sufficient cause for not filing the Appeal within a period of 180 days referred to in clause (a) of sub-section (2) of Section 35G of the said Act.

The learned Counsel for the Commissioner relies on the decision of another Division Bench of this Court in the case of VIP Industries v. Commissioner, Central Excise, Nashik reported in 2011 (264) E.L.T. 24 (Bom.) in support of the contention that in view of the aforesaid statutory amendment to Section 35G of the said Act by insertion of sub-section (2)(a) with retrospective effect from 1st day of July, 2003, the amendment provides good ground for this Court to review the impugned orders by which the applications for condensation of delay were dismissed, as the Appeal in question u/s 35G of the said Act was filed after 1st day of July, 2003. In fact, the Appeal was filed in the year 2008.

The learned Counsel for the respondent in each applications, however, oppose the applications for review and submit that at the highest, the amendment with effect from 1st day of July, 2003 empowers the High Court to condone the delay beyond the period of 180 days in proceedings which were pending on the date of enactment of the Finance (No. 2) Act, 2009, but it would not empower this Court to review the orders, which were already passed prior to enactment of the Finance (No. 2) Act, 2009. Reliance is placed on the decision dated 21st November, 2009 of another Division Bench of this Court in the case of Commissioner of Income Tax-1 v. M/s. The West Coast Paper Mills Ltd. reported in (2009) 319 ITR 390 (BOM.)

Having heard the learned Counsel for the parties, we find considerable substance in the submission made on behalf of the Applicant-Commissioner of Central Excise. Prior to amendment to Section 35-G of the said Act by the Finance (No. 2) Act, 2009, Appeals filed u/s 35-G of the said Act were required to be filed within a period of 180 days. This Court had no power to condone delay in filing the Appeal if it was filed beyond the period of 180 days referred to clause (a) of sub-section (2) of Section 35-G of the said Act. However, now with effect from 1st day of July 2003, Section 108 of The Finance (No. 2) Act, 2009 specifically confers power on the High Court to condone delay beyond the period of 180 days, if the High Court is satisfied that there is sufficient cause for not filing the same within the said period. Section 108 of the Finance (No. 2) Act, 2009 while inserting sub-section (2)(a) in terms provides that sub-section (2)(a) shall be inserted and shall be deemed to have been inserted with effect from 1st day of July, 2003.

In view of the above clear statutory provision and following the interpretation placed on this amendment by another Division Bench of this Court in the case of VIP Industries Ltd. v. The Commissioner of Central Excise reported in 2011 (264) E.L.T. 24 (Bom.), we have no hesitation in allowing these applications.

As regards the reliance placed on the decision of another Division Bench in the case of CIT v. The West Coast Paper Mills Ltd. reported in (2009) 319 ITR 390 (Bom.), the Court there was concerned with the question about the maintainability of the review petition u/s 260A of the Income Tax Act, 1961 and the Court there was not concerned with the question of review in view of the statutory amendment with retrospective effect. In the result, both the applications are allowed. The judgment dated 12th June, 2009 passed in Miscellaneous Civil Application No. 886/2008 and in Miscellaneous Civil Application No. 44/2009 are hereby recalled and both the Miscellaneous Civil Application Nos. 886/2008 and 44/2009 are restored to files and shall be placed for hearing on 25th April, 2011.