Civil Appeal No 757 of 1988
From the Judgment and Order dated 1481986 of the Allahabad High Court in FA No 448 of 1978
G Ramaswamy Additional Solicitor General Pramod Swarup and P Parmeshwaran for the Appellants
RP Gupta for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Special leave granted
The appeal is disposed of by the judgment hereunder
It appears that on or about 18th September 1969 four agreements were entered into between Ms LK Ahuja  Co and Union of India represented by the Executive Engineer Northern Railway Allahabad for the construction of certain quarters
It was followed by supplementary agreement entered into sometime in 1972
It is stated that all the four contracts were executed and completed by the first respondent on diverse dates
The last one was on 30th May 1971
Between 29th May 1972 to 19th June 1972 the respondent accepted the four final bills and gave no claim declaration in respect of the four contracts
The respondent wrote a letter to the Additional Chief Engineer RENR Allahabad stating that Rs191137 were due on account of the work executed and requested him to refer the dispute to the Arbitrator
On 4th June 1976 a reply was sent to the above letter stating that there was no dispute between the parties and hence no question of appointment of any Arbitrator arose
On 13th December 1976 an application was filed by the respondent in the Court of Civil Judge Allahabad for appointment of an Arbitrator under Section 20 of the hereinafter called the Act 
That application was dismissed on 10th February 1978 as being barred by limitation
There was an appeal from the said decision to the High Court of Allahabad and the High Court by its impugned Judgment and Order dated 14th August 1986 allowed the appeal
Hence this appeal
The sole question involved in this appeal is whether the High Court was right in dismissing the application
In matters of this nature the main question is whether the application under Section 20 was within time
Though there was some doubt before but now it is well 405 settled in view of the decision of this Court in Kerala State Electricity Board Trivandrum vs TPKK Amson  Beson Kerala  that Article 137 would apply to any petition or application filed under any Act to a Civil Court
The Words any other application this Court held under Article 137 cannot be read on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in part I of the third division
The aforesaid view has to be harmonised with the view of this Court in Wazirchand Mahajan  Anr
vs Union of India  There this Court found that the second appellant had purchased from the Himachal Pradesh Government the right to extract and collect certain medicinal herbs from the forests of Chamba District
The period of agreement was one year from September 1 1960
Under an arbitration clause in the agreement all disputes between the parties were to be referred to the Deputy Commissioner Mandi District Himachal Pradesh
The second appellant transferred all his rights under the agreement to the first appellant with the consent of the State of Himachal Pradesh
Disputes arose between the parties in October 1950
On May 30 1952 the appellants addressed a letter to the Chief Conservator of Forests Himachal Pradesh requiring that officer to submit the matters in difference to the arbitration of the Deputy Commissioner Mandi Distt
By a letter dated June 23 1952 the Chief Conservator declined to agree to a reference contending that the matters desired to be referred were outside the arbitration clause
On June 22 1955 the appellants applied to the District Court of Chamba for an order that the agreement be filed in Court and the disputes between them and the State be referred to the sole arbitration of the Deputy Commissioner of Mandi Distt
The State of Himachal Pradesh contended inter alia that the application for filing the arbitration agreement was barred by law of limitation as the right to apply if any arose in 1950 and not in June 1952 as alleged
The Court of First Instance held in favour of the appellants
In appeal the Judicial Commissioner reversed the order of the Trial Court
In the view of the Judicial Commissioner an application for filing an arbitration agreement under Section 20 of the Act was governed by Article 181 of the Limitation Act 1908 and since the period of three years prescribed thereby commenced to run from the date on which the differences arose between the parties from the month of September 1950 and in any case on September 1 1951 the application of the appellants was held to be barred
The Judicial Commissioner was in error hence according to this Court in rejecting the application of the appellants for filing the arbitration agreement as barred under Article 181 of the Limitation 406 Act
It was reiterated that the terms of Article 181 though general and apparently not restricted to applications under the Code of Civil Procedure have always been interpreted as so restricted
In the aforesaid background this Court directed the arbitration agreement to be filed
This question was again considered by this Court in Mohd Usman Military Contractor Jhansi vs Union of India Ministry of Defence There the appellant had entered into a contract with the Government of India
The contract contained an arbitration clause
For certain supplies made under the contract the appellant made representations to the Government for payment and for arbitration of disputes
On or about July 10 1958 Government refused to refer the matter for arbitration
On July 11 1961 the appellant filed an application in the Court of District Judge under Sections 8  20 of the Act for filing the arbitration agreement and for an order of reference of the disputes to an arbitrator appointed by the Court
The respondent contended that the application was barred by Limitation
The learned District Judge allowed the application holding that there was no limitation for making an application under Sections 8  20 of the Act
The defendant s appeal was dismissed by the High Court as incompetent insofar as it challenged the order under Section 8 but was allowed insofar as it challenged the order under Section 20 of the Act
The High Court held that an application under Section 20 was governed by Article 181 of the Indian Limitation Act 1908
In coming to this conclusion the High Court took into account the settled judicial view that the operation of Article 181 was limited to applications under the Code of Civil Procedure and reasoned that Article 181 should be construed as if the words under the Code  were added in it
The repealed para 17 of the second schedule to the Code and re enacted it in Section 70 with minor modifications
That being so Section 81 of the applied and the implied reference in Article 181 to para 17 of the second schedule to the Code should be construed as a reference to Section 20 of the Act
In the appeal by certificate this Court held that by the the Legislature amended Articles 158 and 178 of the Limitation Act and made them applicable to the relevant proceedings under the but no similar change was made in Article 181
It was manifest that save as provided in Articles 158  178 there would not be any limitation for other application
In the circumstances the Court found it impossible to construe the implied reference in Article 181 as a reference to the  or to hold that Article 181 applied to applications under that Act
In the premises the Court held that an application under Sections 8  20 of 407 the was not governed by Article 181 of the Limitation Act
In that view of the matter the application was held to be barred by limitation
The question is now concluded as mentioned hereinbefore vide this Court s decision in Kerala State Electricity Board Trivandrum vs TPKK Amsom  Besom supra
It appears that these questions were discussed in the decision of the Calcutta High Court in Jiwnani Engineering Works P Ltd vs Union of India where one of us Sabyasachi Mukharji was a party and which held after discussing all these authorities the question whether the claim sought to be raised was barred by limitation or not was not relevant for an Order under Section 20 of the Act
Therefore there are two aspects
One is whether the claim made in the arbitration is barred by limitation under the relevant provisions of the Limitation Act and secondly whether the claim made for application under Section 20 is barred
In order to be a valid claim for reference under Section 20 of the  it is necessary that there should be an arbitration agreement and secondly differences must arise to which the agreement in question applied and thirdly that must be within time as stipulated in Section 20 of the Act
In the instant case it appears that there was an arbitration agreement as found by the High Court covering the disputes
It is also obvious that differences existed
There was an assertion of claim and denial of the same
It is stated in the judgment of the High Court that under the agreement the appellants had claimed a sum of Rs 191636 and as such the dispute was liable to be referred to arbitration in terms of the agreements entered into between the parties
Further for the purpose of getting an arbitrator appointed a letter dated June 4 1976 was sent by the appellant to the Additional Chief Engineer Allahabad
The respondent did not take any step in time
The appellant filed an application on 461976 under Section 20 of the Act
It was contended before the learned Trial Judge that the work under all the four contracts had been fully executed by the appellant on different dates and the respondents claimed that the appellant had accepted full and final payment of the agreements which had been executed by it and no claim declaration in respect of the same had been given by the appellant
It was therefore submitted that since there was no dispute the application filed under Section 20 of the Act was misconceived
The Trial Court held that the Court had no jurisdiction under Section 20 of the Act
The respondent came up in appeal before the High Court
The question therefore was whether there was a valid claim under section 20 of the Act to be referred in accordance with law
408 In view of the well settled principles we are of the view that it will be entirely a wrong to mix up the two aspects namely whether there was any valid claim for reference under Section 20 of the Act and secondly whether the claim to be adjudicated by the arbitrator was barred by lapse of time
The second is a matter which the arbitrator would decide unless however if on admitted facts a claim is found at the time of making an Order under Section 20 of the  to be barred by limitation
In order to be entitled to ask for a reference under Section 20 of the Act there must be an entitlement to money and a difference or dispute in respect of the same
It is true that on completion of the work right to get payment would normally arise and it is also true that on settlement of the final bill the right to get further payment gets weakened but the claim subsists and whether it does subsist is a matter which is arbitrable
In this case the claim for reference was made within three years commencing from April 16 1976 and the application was filed on December 18 1976
We are therefore of the view that the High Court was right in this case
See in this connection the observations of this Court in Major Retd Inder Singh Rekhi vs DDA  In the aforesaid view of the matter this appeal must fail and is accordingly dismissed
The costs of this appeal would be the costs in the arbitration proceedings
SL Appeal dismissed


Summary:
 The respondent firm filed a classification list before the Assistant Collector Excise and sought approval for treating sawn timber and dried timber as non excisable on the ground that sawing of timber logs into sizes did not amount to manufacture
The Assistant Collector held that conversion of the timber logs into sawn timber satisfied the conditions of manufacture since it involved transformation whereby a new and different article with the distinct name character or use which was different from the timber logs emerged and therefore excise duty was leviable under Tariff Item 68
On appeal the Collector concurred with the Assistant Collector
Allowing the appeal of the respondent the Customs Excise and Gold Control Appellate Tribunal held that no new product emerged by sawing of timber into several sizes
Hence the appeal by the Revenue under Section 35L of the 
Dismissing the appeal by the State  HELD 11 Excise duty becomes chargeable only when a new and different article emerges having a distinct name character and use
This is a question of fact depending upon the relevant material whether as a result of activity a new and different article emerges having a distinct name character and use
365B D 12 Manufacture  implies a change but every change is not manufacture and yet every change of an article is the result of treatment labour and manipulation
But something more was necessary and there must be transformation a new and different article must emerge having a distinct name character or use
365E F 364 Having regard to the facts of the case as found by the Tribunal which was the final fact finding authority and regard being had to the principles for determining the questions which were correctly applied by the Tribunal the conclusion of the Tribunal that no new product emerged by sawing of timber into several sizes is unassailable
365F G Union of India vs Delhi Cloth General Mills   Allenburry Engineers Pvt
Ltd vs Ramakrishna Dalmia  Ors  and State of Orissa  Ors
vs The Titaghur Paper Mills Co Ltd  Anr   referred to