P. Sathasivam, J. - (1.) Leave granted.
(2.) In all these appeals, the question for consideration is whether the High Court has power to condone the delay in presentation of the reference application under unamended Section 35H(1) of the Central Excise Act, 1944 (hereinafter referred to as "the Act") beyond the prescribed period by applying Section 5 of the Limitation Act, 1963. When S.L.P. (c) No. 14467 of 2007 came up for hearing on 4.12.2008, a two-Judge Bench, after noticing the decision in Commissioner of Customs, Central Excise, Noida v. Punjab Fibres Ltd. Noida, 2008 (223) ELT 337(SC) , expressed doubt about the said judgment with regard to the jurisdiction of the High Court in the matter of condoning delay beyond the prescribed period under the Act. After finding that under Section 35H of the unamended Act (before enactment of Act 49/2005), with regard to application for reference, the High Court exercises its advisory jurisdiction in a case where the substantial question of law of public importance arise, the said Bench directed the matter to be heard by larger Bench. In this way, all the above mentioned matters arising from the judgments of the Allahabad High Court on identical issue posted before this Bench for determining the question, namely, "whether the High Court in the reference application under Section of the unamended Act, has power under Section 5 of the Limitation Act, 1963 to condone the delay beyond the period prescribed under the main statute i.e., Central Excise Act.
(3.) In all these three matters, Commissioner of Customs & Central Excise approached the High Court of Allahabad by way of reference application under Section 35H(1) of the unamended Act beyond the prescribed period as provided in the same. The High Court relied on earlier orders and finding that it has no power to condone the delay in filing the reference application under the said provision, dismissed the reference application as barred by limitation.;