Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
5-‘C’ Wing, HUDCO Vishala Building,
Bhikaji Cama Place, R. K. Puram,
New Delhi, the 27th August, 2009.
Circular No. 895/15/2009-CX
To
1. All Chief Commissioners of Central Excise
2. All Chief Commissioners of Customs
3. All Chief Commissioners of Customs (Preventive)
4. All Chief Commissioners of LTU
5. All Commissioners of Customs / Central Excise / Service Tax.
Madam / Sir,
Sub:- Amendment in Section 35G / 35H of Central Excise Act and Section 130 /
130A of Customs Act regarding powers of the High Court to condone delay in
filing Appeal / Reference Application – Reg.
Attention is invited to Section 86 & 107 of the Finance Act, 2009 vide which
amendment with effect from 1st July, 2003 has been carried out under Section 130
of the Customs Act, 1962 and Section 35G of the Central Excise Act, 1944
respectively 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.
Similarly, vide Section 87 & Section 108 of the Finance Act, 2009, amendment has
been carried out with effect from 1st July, 1999 under Section 130A of the
Customs Act, 1962 and Section 35H of the Central Excise Act, 1944 to the effect
that the High Court may admit reference application or permit the filing of
memorandum of cross objections after the expiry of the relevant period if it is
satisfied that there was sufficient cause for not filing the same within that
period. The Notes on Clauses to the Finance Bill, 2009 may also be referred to
in this regard.
- In respect of pending Appeals / Applications filed with delay, if any,
amendments as above may be brought to the notice of the Court by way of filing
of Interim Application. Further, 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 in consultation with
the empanelled Sr. Standing Counsel in this regard.
- The amendments as above have been brought out in the statute consequent upon
the judgement of Larger Bench of the Hon’ble Supreme Court in the case of
Commissioner of Customs & Central Excise Vs. M/s. Hongo India Pvt. Ltd.
[2009(236) ELT.417(SC)] 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. Vide the amendment as above, the High
Courts have been assigned the powers to condone the delay in filing of reference
applications/appeals. However, the Commissionerates must 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.
- This circular is issued in supersession of Board’s Circular No.
888/8/2009-CX. dated 21st May, 2009.
- Hindi version will follow.
Yours faithfully,
Sd
( M.D. Singh )
Commissioner (L&J)
Tele.No. 26161042
F.No.276/109/2007-CX.8A