THE COMMISSIONER OF CENTRAL EXCISE vs. M/S. V. M. SALGAOKAR AND BRO PVT. LTD.

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 35-G 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 Versus Commissioner, Central Excise, Nashik reported in 2011(264) Excise Law Times 24 (Bom.) in support of the contention that in view of the aforesaid statutory amendment to Section 35-G 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 … 4 … this Court to review the impugned orders by which the applications for condonation of delay were dismissed, as the Appeal in question under Section 35-G of the said Act was filed after 1st day of July, 2003. In fact, the Appeal was filed in the year 2008. 5. 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 Versus 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.

As regards the reliance placed on the decision of another Division Bench in the case of CIT Versus The West Coast Paper Mills Ltd. reported in (2009)319 IR 390 (Bom), the Court there was concerned with the question about the maintainability of the review petition under Section 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. MOHIT S. SHAH, C. J. S. C. DHARMADHIKARI, J. SMA