Delayed Appeals in High Courts – Amendment to Section 35G – Board Instructions
THE Finance Act, 2009 had amended Section 130 of the Customs Act, 1962 and Section 35G of the Central Excise Act retrospectively with effect from 1.7.2003 to the effect that the High Court may admit an appeal after the expiry of the period of one hundred and eighty days if it is satisfied that there was sufficient cause for not filing appeal within the stipulated period.
The amendments have been brought out in the statute to undo the judgement of Larger Bench of the Supreme Court in the case of Commissioner of Customs & Central Excise Vs. M/s. Hongo India Pvt. Ltd. - wherein it was held that the High Courts have no power to condone the delay in filing the reference application beyond the prescribed period of one hundred and eighty days. By the amendment as above, the High Courts have been assigned the powers to condone the delay in filing of reference applications/appeals.
Now the Board directs the Field formations:-
1. In respect of pending Appeals / Applications filed with delay, if any, amendments may be brought to the notice of the Court by way of filing of Interim Application
2. In respect of Appeals / Applications filed with delay by the Commissionerate which were dismissed by the High Court by invoking the limitation clause under the Act, the filing of Review Petition may be contemplated as per procedure in the respective High Court.
However, in all fairness, the Board wants Commissioners to ensure that appeals are filed within the stipulated period of one hundred and eighty days under all circumstances. The litigation mechanism of the Commissionerates before the High Courts must be closely monitored so that the appeals are filed in time.
CBEC Circular No. 895/15/2009- CX : Dated 27th August, 2009.