Whether award passed by arbitrator which decides issue of limitation is interim award?
74, a case strongly relied upon by Shri Sinha, this Court held in
the context of limitation qua recovery of duty under Section 11A
of the Central Excise Act, 1944 as follows:
“69. The question of limitation involves a question of
jurisdiction. The finding of fact on the question of
jurisdiction would be a jurisdictional fact. Such a
jurisdictional question is to be determined having
regard to both fact and law involved therein. The
Tribunal, in our opinion, committed a manifest error
in not determining the said question, particularly,
when in the absence of any finding of fact that such
short-levy of excise duty related to any positive act
on the part of the appellant by way of fraud,
collusion, wilful misstatement or suppression of
facts, the extended period of limitation could not
have been invoked and in that view of the matter no
show-cause notice in terms of Rule 10 could have
been issued.”
Given the context of Section 11A of the Central Excise
Act, 1944, obviously the expression “jurisdiction” would mean
something more than merely being able to embark on the
merits of a dispute. In a recent judgment under Section 9A of
the Code of Civil Procedure, 1908 (as inserted by the State of
Maharashtra), this Court in Foreshore Coop. Housing Society
Ltd. v. Praveen D. Desai (2015) 6 SCC 412, referred to the
30expression “jurisdiction” occurring in Section 9A and held an
earlier judgment of this Court to be per incuriam. Though the
Constitution Bench judgment in Ittavira (supra) was mentioned
by the Bench, referring to the argument of one of the counsel
for the parties, in the concluding portion, this judgment is not
referred to at all. In any case, the reasoning of the Court in that
case was in the context of Section 9A which, when contrasted
with Order XIV of the Code of Civil Procedure, 1908, made the
Court accept the wider concept of “jurisdiction” as laid down in
Pandurang (supra).
29. In our view, therefore, it is clear that the award dated 23rd
July, 2015 is an interim award, which being an arbitral award,
can be challenged separately and independently under Section
34 of the Act. We are of the view that such an award, which
does not relate to the arbitral tribunal’s own jurisdiction under
Section 16, does not have to follow the drill of Section 16(5)
and (6) of the Act. Having said this, we are of the view that
Parliament may consider amending Section 34 of the Act so as
to consolidate all interim awards together with the final arbitral
award, so that one challenge under Section 34 can be made
31after delivery of the final arbitral award. Piecemeal challenges
like piecemeal awards lead to unnecessary delay and additional
expense.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 824 OF 2018
(ARISING OUT OF SLP (C) NO.19771 OF 2017)
M/S INDIAN FARMERS FERTILIZER
CO-OPERATIVE LIMITED
V
M/S BHADRA PRODUCTS
Dated:January 23, 2018.
